1. science
2. medicine
3. surgery

SUMMARIES
WITH TRIAL
ANALYSIS
Volume 21, Issue 9
September 2011
$39,800,000 COMBINED GROSS VERDICT – Product Liability – Defective design of Yamaha
Waverunner jetski – Loss of steering when throttle is released – Waverunner collides with boat – Wrongful death of 14year-old girl – Multiple injuries to surviving 15-year-old girl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
$12,900,000 GROSS VERDICT – Motor Vehicle Negligence – Auto/Truck Collision – Tractor-trailer
makes negligent U-turn into path of car – Traumatic brain injury to 17-year-old female – Continuing cognitive deficits . 3
$1,875,000 RECOVERY – Motor Vehicle Negligence – Auto/Bicycle Collision – Dangerous road condition –
Six-year-old plaintiff struck by vehicle in apartment complex – Bilateral femur fractures – Peroneal nerve damage –
Foot drop – Growth plate arrest – Multiple surgeries performed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
$4,740,000 VERDICT – Medical Malpractice – Anesthesiology – Negligent intubation – Perforation of
esophagus – Delay in diagnosis – Sepsis – Five-week coma – Multiple surgeries – Feeding tube – Total disability . . . 5
DEFENDANTS’ VERDICT – Medical Malpractice – Hospital Negligence – Alleged failure to adequately treat
infection – Failure to timely remove in-dwelling catheter – Septic shock – Endocarditis – Wrongful death . . . . . . . . 7
$1,500,000 RECOVERY– Negligent Truck Loading – Negligent transportation of telephone pole – Shattered
windshield – Facial fractures with surgery – Herniated cervical disc – Traumatic brain injury . . . . . . . . . . . . . . . 8
$1,500,000 RECOVERY – State Liability – Negligent operation of drawbridge – Failure to check for bridge
traffic – Pedestrian crossing bridge falls – Wrongful death of 80-year-old male . . . . . . . . . . . . . . . . . . . . . . 9
$950,000 RECOVERY – Premises Liability – Unsafe condition of rental home back door – Lack of adequate
swimming pool barriers – Toddler exits through back door and falls into pool and drowns . . . . . . . . . . . . . . . . 10
VERDICTS BY
CATEGORY
A capsulized summary
of signficant verdicts
from our companion
publications is also
included.
Published monthly
Professional Malpractice (1)
Nursing . . . . . . . . . . . . . 11
Rear End Collision . . . . . . . . 19
Single Vehicle Collision . . . . . . 20
Construction Negligence (1) . . . . . 11
Municipal Liability (2) . . . . . . . . 20
Construction Site Negligence (1) . . . 12
Personal Negligence (1) . . . . . . . 21
Excessive Use of Force (1) . . . . . . 13
Premises Liability (6)
Fall Down . . . . . . .
Falling Object . . . . .
Hazardous Premises . .
Inadequate Lighting . .
Negligent Maintenance .
Insurance Obligation (1) . . . . . . . 13
Motor Vehicle Negligence (11)
Auto/Bicycle Collision. . . .
Auto/Truck Collision . . . .
Broadside Collision . . . . .
Head-on Collision . . . . .
Left Turn Collision . . . . .
Multiple Vehicle Collision . .
Parking Lot Collision . . . .
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Property Owner Liability (1) . . . . . 25
Unsafe Workplace (2) . . . . . . . . 25
Supplemental Verdict Digest . . . . 27
Copyright 2011 Jury Verdict Review Publications Inc.
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Summaries with Trial Analysis
$39,800,000 COMBINED GROSS VERDICT – PRODUCT LIABILITY – DEFECTIVE DESIGN
OF YAMAHA WAVERUNNER JETSKI – LOSS OF STEERING WHEN THROTTLE IS
RELEASED – WAVERUNNER COLLIDES WITH BOAT – WRONGFUL DEATH OF 14-YEAROLD GIRL – MULTIPLE INJURIES TO SURVIVING 15-YEAR-OLD GIRL.
Palm Beach County, FL
This product liability action against Yamaha
Motors Corporation involved a collision between a
Yamaha WaveRunner, designed and
manufactured by the defendant, and a 30 foot
speedboat. The 14-year-old passenger on the
WaveRunner was killed and the driver claimed
multiple debilitating injuries, including traumatic
brain damage, as a result of the collision. The
plaintiffs (the estate of the decedent and the
surviving driver) alleged that the WaveRunner
was dangerously designed in that it lost steering
when the throttle was released. The defendant
maintained that the watercraft was not defective
and utilized a steering system which was common
in the industry at the time it was manufactured in
2001. The defendant argued that the collision
resulted from operator error on the part of the
inexperienced plaintiff driver.
The plaintiff driver of the WaveRunner testified that she
and the decedent borrowed the WaveRunner on Easter
Sunday in 2005 while attending an Easter party. The girls
were operating the personal watercraft in the
Intracoastal Waterway near Currie Park in West Palm
Beach. As the jet ski approached a cigarette boat, the
plaintiff claimed that she took her hand off the throttle in
an attempt to turn, but could not steer the WaveRunner
and crashed into the side of the moving boat.
The plaintiffs alleged that the defendant was aware of a
steering problem with the WaveRunner which caused a
loss of steering when the throttle was released. The plaintiff claimed that the defendant failed to correct the
problem or to issue adequate warnings regarding the
known defect.
Evidence established that the plaintiff driver was an inexperienced jet ski operator and this was her first time in
control of such a watercraft. The plaintiff’s human factors
expert testified that the plaintiff’s natural instinct, when
encountering the larger boat, would have been to release the throttle. The plaintiff testified that she was unaware that releasing the throttle would result in a loss of
steering control.
The plaintiff driver was diagnosed with multiple injuries including massive skin and muscle lacerations; degloving
of both upper legs, buttocks and genitals; open book
fracture of the pelvis; fracture and complete separation
of the right shoulder; maxilla fracture; avulsion fracture
and loss of four upper and four lower front teeth; severed patellar tendon and ruptured colon and intestines
requiring ostomies. The plaintiff was hospitalized for
several months following the accident.
The plaintiff’s physicians opined that the plaintiff will require future hip and knee replacements. The plaintiff
also claimed post-traumatic stress disorder and a traumatic brain injury with continuing cognitive deficits. The
plaintiff’s experts testified that the plaintiff is prone to volatile behavior and is totally disabled from employment.
The plaintiff will require supervision for the remainder of
her life and will never be able to live independently, according to her physicians. The plaintiff’s economist estimated the plaintiff’s future life care expenses to be $6.7
million.
The defense denied that the WaveRunner contained inadequate warnings and pointed out that an on-board
label stated: “Do Not Release the Throttle When Trying to
Steer.” The defense maintained that the steering system
was a design that was common in the industry at the
time the jet ski in question was manufactured in 2001.
The defendant argued that the plaintiff driver did not
know how to safely operate the WaveRunner. The deposition of an eyewitness, who saw the accident from the
balcony of his condominium unit, was read to the jury
by the defense. This witness testified that the
WaveRunner was accelerating forward under throttle
and that the plaintiff driver was attempting to jump the
wake of the boat at the time of the collision. The witness
contended that the plaintiff driver was not looking when
she drove the jet ski into the side of the boat.
The defense contended that the mother of the plaintiff
driver, a Fabre defendant, took the girls to the Easter
party and gave them permission to go out on the jet ski.
The defense claimed that the mother should not have
allowed the girls to take out the jet ski, given the fact that
they did not know how to safely operate the watercraft.
The defense also argued that the surviving plaintiff operator may have sustained some psychological injury,
from which she would eventually recover, but that she
had no objective evidence of an organic brain injury.
The defendant claimed that the plaintiff was capable of
obtaining some type of gainful employment and that
she was able to enjoy life as evidenced by several
pictures found on Facebook.
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Founder
Ira J. Zarin, Esq.
Editor in Chief
Jed M. Zarin
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The jury found that the WaveRunner was defective. It assessed the defendant 88% responsible. The plaintiff operator’s mother (Fabre defendant) was
assessed 10% negligence; the plaintiff operator 1% and the owner of the
WaveRunner (Fabre defendant) was assessed 1% negligence. The jury
awarded gross combined damages of $39,800,000. The net award of
$35,024,000 included $16,024,000 to the surviving operator and
$19,000,000 to the estate of the decedent. Post-trial motions are currently
pending.
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REFERENCE
Perez vs. Yamaha Motor Corp, USA. Case no. 502006CA005301; Judge David Crow, 06-10-11.
Attorney for plaintiffs Perez and Archer: Robert B. Baker of Baker &
Zimmerman in Parkland, FL. Attorney for plaintiff operator (Archer):
David A. Kleinberg of Neufeld, Kleinberg & Pinkiert in Aventura, FL.
Attorneys for plaintiff Estate of Perez: Eric Ansel of Ansel & Miller in
Hollywood, FL, Scott M. Sarason of Rumberger, Kirk & Caldwell in
Miami, FL, and Richard A. Mueller and Carl Pesce of Thompson, Coburn
in St. Louis, MO.
COMMENTARY
This six-week long trial was hard fought on both sides and the courtroom was reportedly
packed with emotion during much of the testimony. One of the main premises upon which
the plaintiff’s case rested was the natural instinct to let go of the throttle when faced with a
near-collision on a jet ski. The plaintiff operator maintained that she had no idea that, in
letting go of the throttle, she would also lose steering control.
The damages to the surviving driver were unquestionably devastating. Not only did she suffer severe physical injuries and scarring, but also claimed a traumatic brain injury and
emotional damages associated with guilt and regret over the death of her best friend.
The defense maintained that the collision resulted from operator error. The defendant presented key testimony in the form of the deposition of a man who viewed the accident from
his waterfront condominium balcony. The testimony of this witness, that the WaveRunner
was throttling forward at the time of the crash, seemed to contradict the plaintiff’s version
that she had let go of the throttle. Plaintiff’s counsel attempted to negate this potentially
damaging testimony by questioning the witness’s ability to see whether the throttle had, in
fact, been released from the distance of his condominium balcony.
In the end, the jury apparently accepted the plaintiff’s argument that it was
counterintuitive, especially for an inexperienced operator such as the plaintiff, to maintain
throttle to avoid a collision.
$12,900,000 GROSS VERDICT – MOTOR VEHICLE
NEGLIGENCE – AUTO/TRUCK COLLISION – TRACTORTRAILER MAKES NEGLIGENT U-TURN INTO PATH OF
CAR – TRAUMATIC BRAIN INJURY TO 17-YEAR-OLD
FEMALE – CONTINUING COGNITIVE DEFICITS.
Nassau County, FL
The plaintiff was a 17-year-old passenger in a vehicle which
collided with a logging truck, driven by the defendant truck driver
and owned by the defendant’s employer. The plaintiff claimed that
the accident was caused when the tractor-trailer made a negligent
U-turn in front of the host vehicle. The defendant maintained that
the host driver, also a defendant in the case, was negligent in
failing to avoid the impact. The defense also contended that the
plaintiff was comparatively negligent for not wearing her seatbelt
and that the Florida Department of Transportation bore partial
responsibility for failing to prohibit U-turns in the area. The Florida
Department of Transportation was listed as Fabre defendants on the
verdict form.
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The plaintiff and host driver (her boyfriend) were driving to
the plaintiff’s house from the host driver’s house in the
early morning hours in September 2005. The defendant’s logging truck made a U-turn from the opposite direction in front of them and the host vehicle struck the
center of the tractor-trailer and rode under it.
The accident occurred on U.S. Route 1 in Hilliard, Florida,
about one and a-half miles north of a truck weight station. The plaintiff alleged that the defendant employer
had a policy directing its truck drivers to take the back
roads in order to avoid the weight stations. The plaintiff
also claimed that the truck violated state statutes by failing to have a light marking the logs which were hanging
off the back of the trailer.
Evidence showed that the plaintiff was lying across the
front seat, face up, at the time of the collision. One of
the upright bolsters, that hold the logs, entered the cab
of the host vehicle. Testimony indicated that the plaintiff’s head was forced up and struck the dashboard on
impact.
The plaintiff was diagnosed with a traumatic brain injury
as a result of the collision. She claimed to be totally and
permanently disabled from employment and her doctors reported that she will need supervision for the remainder of her life. Evidence showed that the plaintiff
can walk, talk and dress herself; but is unable to make
decisions or be left alone for any period of time.
The plaintiff read the deposition testimony of a pediatric
neurologist retained by the defendant. This expert
agreed with the conclusion of the plaintiff’s experts that
the plaintiff requires constant supervision as a result of
the brain injury sustained; but he opined that she did not
need 24-hour nursing care. The plaintiff’s forensic pathologist opined that the plaintiff would have been killed as
a result of the intrusion of the upright bolster, had she
been wearing her seatbelt.
The defendant maintained that the tractor-trailer was
open and obvious and that the host driver should have
avoided the impact. The defendant’s accident reconstruction expert opined that the defendant truck driver
would not have been able to see the host vehicle approaching because the host vehicle entered a dip in
the road just as the tractor-trailer began its U-turn. The
defense also contended that the area was not marked
with “No U-Turn” signs and therefore the Florida Department of Transportation allowed a dangerous road
condition to exist.
Finally, the defendant contended that the plaintiff’s serious brain injury could have been avoided if she had
been wearing her seatbelt at the time of impact. The
defendant’s biomechanical engineer testified that,
Volume 21, Issue 9, September 2011
SUMMARIES WITH TRIAL ANALYSIS
more likely than not, the upright bolster would have
missed the plaintiff and she would have sustained significant less injury if she had been wearing her seat belt.
The jury found the defendants 65% negligent, the
Florida Department of Transportation (Fabre defendant)
25% negligent and the plaintiff 10% comparatively negligent for failing to wear her seatbelt. The plaintiff was
awarded $12,900,000 in damages which was reduced
accordingly. The defendant’s post-trial motions are
pending.
REFERENCE
Plaintiff’s accident reconstruction expert: Gary
Stephens from MacClenny, FL. Plaintiff’s human
factors expert: Harold Snyder from Myrtle Beach, SC.
Plaintiff’s seatbelt expert: Ronald Wright from Fort
Lauderdale, FL.
Huckleby vs. Masters. Case no. 45-2006-CA-000118;
Judge Brian Davis, 03-29-11.
Attorneys for plaintiff: Robert J. Link, Curry G. Pajcic,
and Steve Pajcic of Pajcic & Pajcic in Jacksonville, FL.
Attorneys for defendant: Michael P. Milton and Eric L.
Leach of Milton, Leach, Whitman, D’Andrea & Milton
in Jacksonville, FL, and William T. Stone in
Jacksonville, FL.
COMMENTARY
The interesting dynamics of this motor vehicle negligence trial pitted expert against expert in the fields of accident reconstruction
and biomechanics. The plaintiff utilized illustrations to demonstrate perspective and distances. The exhibits were designed to
show that the defendant truck driver had more than adequate time
to see the host vehicle approaching. On the other hand, the defense
introduced a reconstruction calculated to support its contentions
that the fault should be placed squarely on the host driver.
Somewhat surprisingly, the jury assessed no negligence against the
defendant host driver and found the Fabre defendant State Department of Transportation to be 25% responsible for not posting
“No U-Turn” signs. The defendant truck driver was not available
for trial and testified by deposition transcript only. The defendant
truck owner, however, made an excellent witness on his own
behalf.
On damages, it is always persuasive when plaintiff’s counsel can
introduce testimony of a medical expert retained by opposing counsel. In this case, the plaintiff introduced the conclusions of a defense neurologist, who substantially agreed with the prognosis put
forth by the plaintiff’s experts regarding the devastating nature of
the plaintiff’s brain injury.
The defendant truck owner had a liability policy limit of $2 million
which the plaintiff reportedly demanded prior to litigation, creating an excess judgment situation. The defendant contends that the
policy limit was offered to the plaintiff years before trial.
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$1,875,000 RECOVERY – MOTOR VEHICLE NEGLIGENCE – AUTO/BICYCLE COLLISION –
DANGEROUS ROAD CONDITION – SIX-YEAR-OLD PLAINTIFF STRUCK BY VEHICLE IN
APARTMENT COMPLEX – BILATERAL FEMUR FRACTURES – PERONEAL NERVE DAMAGE
– FOOT DROP – GROWTH PLATE ARREST – MULTIPLE SURGERIES PERFORMED.
Miami-Dade County, FL
The plaintiff alleged that the motorist who struck
the six-year-old plaintiff on his bicycle and the
apartment complex where the accident occurred
were negligent. The plaintiff claimed that the
defendant motorist negligently struck the child as
he rode across the entrance to the complex. The
plaintiff also claimed that the defendant
apartment complex allowed a dangerous road
condition to exist, contributing to the collision. The
defendants argued that the young plaintiff was
not properly supervised, darted into the street on
his bicycle and that the collision could not have
been avoided.
The minor plaintiff was riding his bicycle in the defendant
apartment complex where he resided when he was
stuck by an automobile driven by the defendant motorist which was exiting the complex. The plaintiff’s architect
opined that the parking lot was negligently designed in
that it lacked any stop signs or other traffic control devices to assign the right-of-way.
The minor plaintiff was diagnosed with a left femur fracture, right femur fracture, peroneal nerve damage to his
leg and drop foot and growth plate arrest as a result of
the collision. He underwent multiple surgeries including
open reduction and internal fixation of the right femur
fracture, a peroneal nerve exploration, two distal tibial
tendon transfers and an osteotomy (a surgical operation
whereby a bone is cut to shorten, lengthen, or change
its alignment). Records showed that the boy also required an epiphysiodesis, a pediatric surgical procedure
in which the epiphyseal, or growth plate, of a bone is either removed, or a cube containing part of it rotated
90° and reinserted.
The plaintiff’s doctors reported that the minor plaintiff has
been left with an abnormal gait which requires a shoe lift
and/or brace. His future life care plan included orthopedic follow-up care, an additional osteotomy, physical
therapy and shoe lifts/braces. The plaintiff claimed
$155,209 in past medical expenses. The plaintiff’s experts also opined that the minor plaintiff’s physical injuries will prevent him from working in any heavy-duty fields
of employment.
The defendants maintained that the young plaintiff rode
his bicycle into the street without looking and that the
defendant driver had insufficient opportunity to avoid
the impact. The defense contended that the youngster
was not properly supervised by his father who was caring
for him at the time.
The case was settled prior to trial for $1,875,000. The
parties agreed to keep the identity of the individuals involved confidential.
REFERENCE
Plaintiff’s accident reconstruction expert: Bert Morrow
from Miami, FL. Plaintiff’s architectural expert:
George Zimmerman from West Palm Beach, FL.
Plaintiff’s economic expert: Gary Anderson from
Miami, FL. Plaintiff’s life care expert: Larry Forman
from Miami.
John Doe vs. ABC Apartment Complex, et al. 02-10-11.
Attorneys for plaintiff: Douglas J. McCarron of The
Haggard Law Firm in Coral Gables, FL, and Sagi
Shaked of The Shaked Law Firm in Miami, FL.
COMMENTARY
The defense of this case was expected to be a classic “dart-out” defense, but was complicated by the addition of a second defendant
(apartment complex) based on the claim of negligent road design
and the lack of traffic control devices. The only witnesses to the accident were the defendant driver and the minor plaintiff. The
young plaintiff’s mother was at work at the time of the incident
and the boy was being supervised by his father. The father passed
away after the incident of completely unrelated causes.
The nature of the multiple orthopedic injuries sustained by the sixyear-old boy was virtually undisputable. He had undergone multiple surgeries and would undoubtedly require continuing care for
the remainder of his life.
$125,000 of the total $1,875,000 settlement was contributed by the
defendant motorist, despite a liability policy limit of only $10,000.
The remaining defendant apartment complex agreed to resolve the
case after plaintiff’s counsel showed that it had removed ALL of the
stop signs from the property. No one, however, could explain why
the stop signs had been removed and never replaced.
$4,740,000 VERDICT – MEDICAL MALPRACTICE – ANESTHESIOLOGY – NEGLIGENT
INTUBATION – PERFORATION OF ESOPHAGUS – DELAY IN DIAGNOSIS – SEPSIS –
FIVE-WEEK COMA – MULTIPLE SURGERIES – FEEDING TUBE REQUIRED – TOTAL
DISABILITY FROM EMPLOYMENT.
Broward County, FL
The plaintiff was a 58-year-old female who
underwent out-patient wrist surgery for carpal
tunnel syndrome. During intubation for the
procedure, she claimed that her esophagus was
perforated and that the injury was not timely
diagnosed leading to overwhelming sepsis and a
near death experience. The defendants included
the anesthesiologist involved as well as his
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practice group, a nurse anesthetist, a nursing
student and the school she attended and the
hospital where the surgery was performed. Each
of the defendants denied that they were
responsible for the injury.
The plaintiff underwent carpal tunnel syndrome release
surgery on November 6, 2007. The plaintiff testified that,
following the surgery, she voiced complaints to at least
three hospital nurses regarding chest pain. One of the
nurses called the defendant anesthesiologist regarding
the plaintiff’s chest pain; however, the plaintiff was released from the hospital before being seen by the
anesthesiologist.
Approximately 33 hours after performance of the wrist
surgery, the plaintiff presented to the emergency room
of a non-party hospital in septic shock. The cause of her
severe sepsis was determined to have originated from a
perforation of her esophagus. The plaintiff’s experts testified that the tear of the esophagus was caused by negligent intubation. The plaintiff’s expert anesthesiologist
opined that the defendant anesthesiologist deviated
from the required standard of care in failing to immediately diagnose the esophagus perforation before
discharging the plaintiff.
The plaintiff underwent extensive surgery to repair the
esophagus damage. She fell into a coma which lasted
five weeks and was fed through a feeding tube for approximately five months. The plaintiff also required surgery to remove a rib in order to gain access to the area
of her injury within her chest. She developed an
incisional hernia in the abdominal wall after placement
of the feeding tube and additional hernia repair surgery
was required.
The plaintiff’s doctors testified that the plaintiff has been
left with permanent neurological deficits which limit her
physical activities. The plaintiff’s vocational expert
opined that the plaintiff is unable to return to her prior
employment as a dental assistant and is totally and permanently disabled from employment. The defendants
maintained that the plaintiff’s surgery and anesthesia
was uneventful with no indication of esophagus damage. Each of the defendants denied causing injury to
the plaintiff.
The jury found the defendant anesthesiologist 50% negligent; the defendant hospital 35% negligent; the defendant nurse anesthetist 10% negligent and the nursing
student 5% negligent. The plaintiff was awarded
$4,740,000 in damages. The award included $4 million
Volume 21, Issue 9, September 2011
SUMMARIES WITH TRIAL ANALYSIS
in past and future pain and suffering and the remainder
in economic damages. Post-trial motions are currently
pending.
REFERENCE
Plaintiff’s anesthesiology expert: Brian McAlary from
Burr Ridge, IL. Plaintiff’s cardiovascular surgery
expert: Richard I. Whyte from Stanford, CA. Plaintiff’s
neurology expert: Waden Emery from Lighthouse
Point, FL. Plaintiff’s nursing expert: Debra Derda
from Long Beach, CA. Defendant’s anesthesiology
expert: John B. Downs from Tampa, FL. Defendant’s
cardiothoracic surgery expert: Scott Sylvestry from St
Louis, MO. Defendant’s nurse anesthetist expert:
Nathaniel Apatov from Sacramento, CA. Defendant’s
nursing expert: Jane Rothrock from Media, PA.
Kalitan vs. Alexander, et al. Case no. 08-029706; Judge
Jack Tuter, 06-16-11.
Attorneys for plaintiff: Crane Johnstone of Sheldon J.
Schlesinger, P.A. in Fort Lauderdale, FL, and Charles
Patrick of Charles B. Patrick, P.A. in Fort Lauderdale,
FL.
COMMENTARY
It was fairly obvious that one of the defendants was negligent in
punching a hole in the plaintiff’s esophagus during intubation.
Thus, much of the case revolved around the jury’s determination as
to apportionment of fault as between the defendants. The jury attributed the bulk (50%) of the responsibility to the defendant anesthesiologist, whom it apparently felt was in overall charge of the
procedure and was in a position to diagnose the injury prior to the
plaintiff’s discharge. The plaintiff did not seek additional treatment
nor seen a physician during the 33-hour period between her surgical discharge and return to the emergency room of another
hospital in septic shock.
The nursing student, who actually placed the intubation tube and
was the most likely to have damaged the plaintiff’s esophagus, was
found to be the least negligent (5%). The jury may have reasoned
that this defendant was gaining experience in the field and should
have been supervised by the others.
In considering damages the jury, no doubt, recognized that the
plaintiff was intended to undergo a relatively minor out-patient
wrist surgery and ended up with a lift-threatening injury. The case
was tried over the course of three weeks and the jury deliberated
for two and a-half days before returning the $4.74 million damage
award. Plaintiff’s counsel filed a proposal for settlement as to the
defendant anesthesiologist in the amount of $1 million and is currently seeking some $750,000 in attorney fees from that defendant,
as well as approximately $200,000 in costs against all defendants.
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DEFENDANTS’ VERDICT – MEDICAL MALPRACTICE – HOSPITAL NEGLIGENCE –
ALLEGED FAILURE TO ADEQUATELY TREAT INFECTION – FAILURE TO TIMELY REMOVE
IN-DWELLING CATHETER – SEPTIC SHOCK – ACUTE RENAL FAILURE – CEREBELLAR
INFARCT – ENDOCARDITIS – WRONGFUL DEATH.
Volusia County, FL
This medical malpractice action was brought
against a hospitalist, his employer, an infectious
disease specialist and his medical group and a
primary care physician following the death of the
49-year-old decedent. The plaintiff alleged that
the defendants failed to adequately treat
osteomyelitis of the decedent’s hip and failed to
timely remove an in-dwelling catheter. As a
result, the plaintiff alleged that the defendant
developed overwhelming sepsis and
complications which caused his death. The
defendants maintained that the decedent was
appropriately treated and that the in-dwelling
catheter was reasonably left in place during a
time when additional antibiotic treatment might
be required. The defense argued that the
decedent failed to obey instructions to have the
catheter removed and did not develop infection
until shortly before his final hospitalization.
In June of 2005, the decedent underwent a lumbar
laminotomy. Because of continuing left hip pain, the
decedent underwent X-rays which showed destruction
of the left hip joint and an MRI of the left hip which was
compatible with osteomyelitis. A total left hip arthroplasty
was planned for August 17, 2005. However, the nonparty orthopedic surgeon aborted the procedure, due
to findings consistent with osteomyelitis. Samples of
bone and fluid were sent to pathology which reported
findings consistent with osteomyelitis.
The orthopedic surgeon asked the defendant infectious
disease specialist to consult on the decedent’s case.
The defendant infectious disease specialist placed the
decedent on a regimen of oral and IV antibiotics. A
home health nurse visited the decedent to monitor the
IV antibiotic treatment. To administer the IV antibiotics, a
non-party general surgeon placed a Groshong catheter
in the decedent’s left subclavian vein. The defendant infectious disease specialist discontinued the IV antibiotic
therapy on October 3, 2005.
Evidence showed that, on October 14, 2005, the decedent called the office of the defendant infectious disease specialist and reported that the catheter was
broken. After a home-health nurse confirmed that the
catheter was not functioning, the defendant infectious
disease specialist instructed the decedent to go the
emergency room to have the catheter removed. However, the emergency room personnel reported that they
did not have a protocol for removal of the Groshong
catheter, which is tunneled a certain depth under the
surface of the skin.
On October 17, 2005, the defendant infectious disease
specialist saw the decedent in his office. On October
19, 2005, the decedent presented to a hospital emer-
gency room with complaints of severe low back pain.
On the following day, October 20, 2005, the decedent
was returned to the emergency room by ambulance
with fever and was hypotension. He was admitted to the
hospital and was diagnosed with septic shock caused
by severe infection and sepsis and acute renal failure.
The Groshong catheter tip was cultured and grew out
staphylococcal aureus.
The decedent suffered a cerebellar infarct and right
frontal and parietal lesions. He then developed
endocarditis (infection of the endocardial surface of the
heart). On November 14, 2005, a code was called, but
the decedent was unable to be resuscitated. The decedent was a 49-year old unemployed carpenter. He was
survived by his wife, two daughters ages 15 and 11 and
a son age 13 at the time of his death.
The plaintiff’s infectious disease expert testified that the
defendant infectious disease specialist failed to take
adequate steps to timely remove the Groshong catheter. This expert also opined that the defendants did not
adequately investigate the cause of the decedent’s inflammatory arthritis. The plaintiff’s expert testified that it
was inadequate for the defendant infectious disease
specialist to send the decedent to the emergency room
for removal of the catheter. The plaintiff contended that
the decedent’s infection continued to worsen until it
ultimately caused his death.
The defendants argued that the decedent’s infection
did not develop until October 20, 2005, the day of his final hospital admission. The defendant argued that the
initial cultures obtained during the aborted hip procedure were reported as negative. The defendant infectious disease specialist contended that he advised the
decedent that culture-negative infections do occur and
that it would be prudent to continue the antibiotic treatment. The defendant infectious disease specialist testified that he did not order the Groshong catheter to be
removed when IV antibiotic therapy was discontinued
on October 3, 2005, because there was a possibility it
would be used again if additional treatment was
necessary.
The defense showed that the decedent did not go to his
October 8, 2005 appointment with the orthopedic surgeon and also missed his October 14, 2005 appointment with the defendant infectious disease specialist.
The defense stressed that the nurses and emergency
room physician found no evidence of infection of the
catheter at the time of the decedent’s October 14,
2005 emergency room visit. Similarly, the defendant infectious disease specialist testified that there was no evidence of infection when he examined the decedent in
his office on October 17, 2005. The defense also ar-
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SUMMARIES WITH TRIAL ANALYSIS
gued that records indicated no sign of infection at the
time of the decedent’s October 19, 2005 emergency
room presentation.
The defendant infectious disease specialist testified that
he told the decedent on October 17, 2005 to go to the
non-party surgeon for removal of the catheter. Records
showed that the defendant infectious disease specialist
wrote a prescription for removal of the catheter and
FAXED it to the surgeon’s office. The defendant then
called the surgeon and spoke to him about the need
for removal of the catheter, according to evidence
offered.
Despite the specialist’s efforts, the decedent did not go
see the surgeon for removal of the catheter. The plaintiff
wife testified that when they contacted the surgeon on
October 17, 2005, they learned he was on vacation.
Contrary to that testimony, the surgeon testified by deposition that he was in his office seeing patients on October 17, 2005, and that he would have removed the
catheter had the decedent appeared. The defendants’
infectious disease specialist testified that, had the catheter been removed on October 17, 2005, the decedent
would not have become infected and would not have
died.
The defendant’s second infectious disease expert testified that any bacteria which had been present in the
hip at the time of the aborted hip procedure were not
responsible for the infection that caused the decedent
to become septic and die. He opined that there was no
sign of infection throughout the month of October until
October 20, 2005.
The jury found no negligence on the part of any defendant which was a legal cause of injury to the plaintiff.
REFERENCE
Plaintiff’s economic expert: Frederick Raffa from
Orlando, FL. Plaintiff’s emergency medicine expert:
Henry Smoak from Indian Rocks, FL. Plaintiff’s
infectious disease expert: Richard Berg from
Baltimore, MD. Defendant’s family medicine expert:
Richard Hays from Wellington, FL. Defendant’s
general surgery expert: Christopher Meyer from
Deland, FL. Defendant’s hospitalist expert: David
Feinbloom from Boston, MA. Defendant’s infectious
disease experts: Anthony Barile from Melbourne, FL,
and Larry Buysh from Atlantis, FL. Defendant’s
orthopedic surgery expert: Ronald Hudanich from
Lake Mary, FL.
Mondell vs. East Coast Hospital Inpatient Specialists,
P.L.C, et al. Case no. 2008-10150-CIDL; Judge Terence
R. Perkins, 05-13-11.
Attorneys for plaintiff: Daniel W. Cotter and Melissa
Powers of The Maher Law Firm in Winter Park, FL.
Attorneys for defendant infectious disease expert and
his practice group: Richard S. Womble and Christine
V. Zharova of Rissman, Barrett, Hurt, Donahue &
McLain, P.A. in Orlando, FL. Attorneys for defendant
hospitalist and his employer: Craig Foels and Mike
Estes of Estes, Ingram, Foels & Gibbs, P.A. in
Orlando, FL. Attorney for defendant primary care
physician: C. Anthony Schoder of Smith, Schoder &
Bledsoe, LLP in Daytona Beach, FL.
COMMENTARY
Plaintiff’s counsel attempted to create a timeline which depicted
the decedent’s condition growing steadily worse as he approached
the hours before his death. However, the defense countered the
plaintiff’s assertions by methodically showing that there was no indication of infection up until the day of the decedent’s final hospitalization. To negate the plaintiff’s assertions that the decedent
should not have been sent to the emergency room for removal of
the in-dwelling catheter, the defendant infectious disease specialist
explained to the jury that he had a good reason to believe that the
emergency department would be able to remove the catheter, since
it had done so in the past on multiple occasions for other patients.
There was also testimony from the defendant infectious disease expert, which the jury may have found persuasive. He asserted that,
during the decedent’s terminal hospitalization, he asked the plaintiff wife why her husband had not gone to the surgeon for removal
of the catheter as instructed; and the wife stated that they did not
want to pay the required co-payment.
During closing statements, plaintiff’s counsel requested that the
jury award at least $3 million in damages. The parties agreed that
plaintiff would not pursue any post-trial motions in exchange for
the defendants’ agreement not to pursue fees and costs against the
decedent’s estate.
$1,500,000 RECOVERY– NEGLIGENT TRUCK LOADING – NEGLIGENT
TRANSPORTATION OF TELEPHONE POLE – POLE EXTENDS BEYOND END OF TRAILER
– SHATTERED WINDSHIELD – FACIAL FRACTURES WITH SURGERY – HERNIATED
CERVICAL DISC – TRAUMATIC BRAIN INJURY.
Okeechobee County, FL
This action arose after a telephone pole, being
transported by the defendant electric company,
smashed through the plaintiff’s windshield and
struck him in the face. The plaintiff alleged that
the defendants negligently transported the pole so
that it extended beyond the back of the trailer and
failed to adequately warn of the dangerous
Volume 21, Issue 9, September 2011
condition. The defendants disputed the extent and
nature of the injuries which the plaintiff claimed
to have sustained as a result of the collision.
The plaintiff was a 38-year-old male at the time of the
accident in 2009. He contended that he was driving on
a dark highway behind the defendant’s truck when the
end of the telephone pole being transported struck his
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windshield. The pole penetrated the windshield and hit
the plaintiff in the face. The plaintiff alleged that the defendant failed to mark the end of the dangerous pole.
The plaintiff sustained facial fractures including sinus
fractures and an orbital fracture requiring orbital repair
surgery. He was also diagnosed with a cervical disc
herniation which his physicians causally related to the
impact.
In addition, the plaintiff complained of continuing cognitive deficits including the inability to concentrate. The
plaintiff’s neurologist opined that the plaintiff’s symptoms
were suggestive of a traumatic brain injury. The plaintiff
returned to his employment at a plant nursery following
the accident and made no claim for loss of future earnings. The defendant’s expert reported that the plaintiff’s
objective testing did not support his claim of a traumatic
brain injury.
The case was settled for $1,500,000 prior to trial.
REFERENCE
Plaintiff’s neurology expert: Francis Conidi from Port
St. Lucie, FL.
9
Marquez vs. Defendant Electric Company. Case no.
2009 CA 728; Judge F. Shields McManus, 03-10-11.
Attorney for plaintiff: Gary A. Friedman of Friedman
& Friedman in Coral Gables, FL.
COMMENTARY
The defendant in this horrific case, involving the plaintiff being
struck in the face by a telephone pole which smashed through his
windshield, was not expected to contest negligence. Similarly, there
was no serious dispute that the accident caused the plaintiff’s facial
fractures and cervical disc herniation.
Evidence showed that the plaintiff’s condition was suggestive of,
but not diagnostic of, a brain injury. He continued to complain that
his cognitive skills, including the ability to concentrate, had been
diminished since the date of the accident. Considering the severity
of the head trauma he sustained, it would not be surprising if a
jury hearing the case attributed his concentration difficulties to the
collision.
The plaintiff was employed in a minimum wage position as a nursery worker and he made no claim for future loss of earnings. Thus,
the bulk of the $1.5 settlement was awarded for the plaintiff’s past
and future pain and suffering and permanent facial disfigurement.
$1,500,000 RECOVERY – STATE LIABILITY – NEGLIGENT OPERATION OF DRAWBRIDGE
– FAILURE TO CHECK FOR BRIDGE TRAFFIC – PEDESTRIAN CROSSING BRIDGE FALLS –
WRONGFUL DEATH OF 80-YEAR-OLD MALE.
Broward County, FL
The decedent was an 80-year-old man who was
walking across Sheridan Street Bridge, a low-lying
drawbridge in Hollywood, Florida, when the
bridge opened and he fell to his death. The
defendants in the case included Florida
Department of Transportation (the owner of the
bridge), the bridge maintenance contractor and
the company which actually operated the opening
and closing of the bridge; as well as its employee
who was on duty at the time in question. The
plaintiff alleged that the defendants were
negligent in failing to ensure that the bridge was
clear of traffic before it was opened. The
defendants were expected to argue that the
decedent was comparatively negligent in failing to
heed the warning bells and gates signaling a
bridge opening.
The decedent lived in a condominium in Hollywood and
had a regular practice of walking across the bridge,
which spanned the Intracoastal Waterway, each
Sunday to visit the beach area. On November 22, 2009,
he apparently did not notice the warning bell ringing
and gates lowering to signal a bridge opening as he
walked onto the bridge.
When the decedent was mid-bridge, it opened and
caused him to fall. The decedent was seen hanging
onto the grid steel by passing motorist. Finally, the captain of a boat passing below radioed the defendant
bridge operator and notified him that a person was
dangling from the bridge. The operator then attempted
to close the bridge, but the decedent was not able to
hang on any longer.
The decedent fell some 30 feet to the pavement below.
He was rushed to the hospital, but died a short time later
from the injuries sustained. The plaintiff argued that the
defendant bridge operator had a duty to make sure
that there was no pedestrian traffic on the drawbridge
before opening it.
The case settled prior to trial for a total of $1,500,000.
REFERENCE
Nolan vs. Florida Department of Transportation, et al.
Case no. 09-065254; Judge Dale Ross, 05-20-11.
Attorney for plaintiff: Jay Cohen of Law Offices of Jay
Cohen in Fort Lauderdale, FL.
COMMENTARY
The defense acknowledged that the bridge tender should have
made sure that no one was on the bridge before opening it. However, the defense was also expected to argue comparative negligence on the part of the elderly decedent who walked through the
warning bells and gates onto the drawbridge while it was in the
process of opening. There was no evidence that the decedent had
any significant impairment of sight or hearing.
There was also a major issue as to the monitory value of the case,
in light of the decedent’s advanced age of 80 years and his limited
remaining life expectancy. However, evidence showed that the decedent was healthy and vital and walked from his condominium to
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enjoy the beach every Sunday. In addition, his surviving wife made
a very compelling witness and the couple had been married for 57
years.
Finally, the dramatic and tragic nature of the death may also have
played a role in the settlement negotiations. The decedent was
seen desperately hanging from the bridge until his strength gave
out. Passing motorists attempted to gain the attention of the defendant bridge operator to no avail; until finally a boat caption
reached him by radio. The case was settled for $1.5 million just
prior to jury selection, under a global settlement without disclosure
as to the contributions of each defendant.
The case also resulted in a more stringent bridge operating policy
and the banning of television and other entertainment devices inside the bridge operator’s quarters. All bridge operators, under
state control, are also now required to exit the structure and visually look for any pedestrians or other traffic which may have inadvertently entered the bridge area before the opening.
$950,000 RECOVERY – PREMISES LIABILITY – UNSAFE CONDITION OF RENTAL HOME
BACK DOOR – LACK OF ADEQUATE SWIMMING POOL BARRIERS – TODDLER EXITS
THROUGH BACK DOOR AND FALLS INTO POOL AND DROWNS.
Broward County, FL
This wrongful death action was brought against
the owners of a home where the minor decedent
drown after he exited the home through a back
door and fell into the swimming pool. The
plaintiffs alleged that the death resulted from the
defendant’s negligence in failing to maintain the
back door in a safe condition and failing to install
proper barriers around the swimming pool. The
defendants denied notice of a problem with the
back door and argued that the child was not
adequately supervised at the time the incident
occurred.
Evidence showed that the family of the minor decedent
rented a home in Dania Beach, Florida from the defendants. The home included an in-ground backyard swimming pool. On February 8, 2010, after the plaintiff’s
family had lived in the home for approximately four
months, evidence showed that the 15-month-old decedent got out the house through the back door.
The plaintiff mother indicated that she had gone into the
bedroom of another son, age four, to look for his jacket
and when she came back a few minutes later, the
baby was gone. The family looked for the missing child
in the front yard first because the other siblings were
playing out front. The young decedent was discovered
floating face down in the backyard swimming pool. The
medical records and experts indicated that the child
was in the water for only a few minutes. However, he
could not be resuscitated and was pronounced dead.
The plaintiff alleged that the back door, installed by the
defendant after the plaintiffs had moved into the house,
was too big and could not be shut or locked properly.
The plaintiff’s architect reported that the condition of the
back door violated the applicable building codes. The
plaintiff claimed that, when the back door was replaced, the city code and Florida statute chapter 515
required certain layers of protection around the swim-
Volume 21, Issue 9, September 2011
ming pool. The plaintiff argued that these barriers were
not installed by the defendant and would have
prevented the incident.
The case was settled prior to trial for a total of $950,000
with an agreement that the identities of the parties involved will remain confidential.
REFERENCE
Plaintiff’s architectural expert: George Zimmerman
from West Palm Beach, FL.
John Doe vs. XYZ Family.
Attorneys for plaintiff: Michael A. Haggard and
Douglas J. McCarron of The Haggard Law Firm in
Coral Gables, FL, and Daniel L. Haverman of The
Haverman Law Firm in Boca Raton, FL.
COMMENTARY
The plaintiff alleged that the defendant homeowners were negligent when they installed a back door leading to the pool area and
that the inability to secure the door and the lack of pool barriers violated Florida Statute Chapter 515, also known as the Residential
Swimming Pool Safety Act. The defense was expected to center on
the care that the toddler was receiving at the time of his death, although the plaintiff maintained that evidence showed the toddler
could not have been in the pool for more than a few minutes. The
defendant homeowners were also expected to argue that they had
no notice of a problem with the back door.
However, the plaintiff was able to prove that the defendants had
installed the back door without a permit. Had the owners pulled a
permit, as required, the plaintiff maintained that they would have
been required to comply with the statute requiring several layers of
protection and safeguards around the swimming pool. Plaintiff’s
counsel stressed that such measures were designed for the safety of
children and would have prevented this tragic death from occurring. There was excess insurance coverage available which enabled
the case to settle for $950,000 before trial.
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PROFESSIONAL MALPRACTICE
Nursing
DEFENDANT’S VERDICT
Medical Malpractice – Nursing – Alleged
inappropriate treatment of decedent following
spinal fracture – Cardiac arrest – Wrongful death
at age 83.
Collier County, FL
The estate of the 83-year-old decedent brought
this medical malpractice action against the
defendant hospital following the decedent’s death
from cardiac arrest. The plaintiff alleged that the
defendant’s death resulted from negligence on
the part of the nursing staff which failed to limit
the decedent’s movement in bed. The defendant
maintained that the decedent was appropriately
treated and that his death was not caused by any
action or inaction of the part of the nursing staff.
A hospitalist was also named as a defendant in
the case, but was dismissed prior to trial.
The decedent was admitted to the defendant hospital
in 2006 after a fall at home and was diagnosed with a
lumbar compression fracture. The plaintiff claimed that
the defendant’s nursing staff was negligent in allowing
the decedent to sit up in bed and move about freely,
which was contraindicated in light of his spinal fracture.
The plaintiff claimed that the increased pain caused by
the decedent’s movements brought on the cardiac
arrest which caused his death.
The defendant’s nursing expert testified that it was appropriate to place the decedent in an upright position in
bed. Evidence showed that there was a doctor’s order
for bed rest, but no order restricting movement in the
bed.
The defendant showed that the decedent was given
CPR after he went into cardiac arrest. The defense contended that the worsening of the decedent’s lumbar
fraction occurred during the resuscitation efforts and not
as a result of his voluntarily movement in bed. The defendant’s experts testified that the decedent’s fatal cardiac arrest was not caused by the treatment rendered
by the defendant’s nurses.
The jury found no negligence on the part of the defendant’s nurses which was a legal cause of the decedent’s death.
REFERENCE
Brett vs. Naples Community Hospital, Inc. Case no.
11207CA001285001XX; Judge Cynthia Atkinson Pivicek.
Attorney for defendant: Kevin W. Crews of Wicker,
Smith, O’Hara, McCoy & Ford in Naples, FL.
CONSTRUCTION NEGLIGENCE
DEFENDANT’S VERDICT
Construction Negligence – Alleged negligent
home construction – Claimed improper drainage –
Flooding to adjoining property.
Seminole County, FL
The plaintiff and defendant in this action owned
adjoining lake-front properties in Seminole
County. The plaintiff alleged that the defendant
negligently built his house in such a manner as to
cause excessive flooding and drainage onto the
plaintiff’s property. The defendant denied that the
construction of his house was the cause of any
flooding, drainage or damage to the plaintiff.
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The plaintiff’s experts testified that the defendant’s larger
house was built at a higher elevation then the plaintiff’s
home and was constructed so that water run-off from
the defendant’s property drained onto the plaintiff’s
property. The plaintiff alleged that the defendant built his
house on a swale that was previously used for water
drainage. The plaintiff introduced photographs depicting flooding by his house and testified that he did not
have flooding nor drainage issues before the construction of the defendant’s house.
The plaintiff’s property value expert opined that the value
of the plaintiff’s house was diminished by approximately
$77,000 as a result of the drainage and flooding issues
created by the defendant’s construction. The defendant’s drainage engineer testified that the defendant’s
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VERDICTS BY CATEGORY
house was constructed to direct water away from the
plaintiff’s home. The defendant maintained that there
were significant measures incorporated into his house to
ensure proper drainage, including gutters directing water towards the street and surface drains sending run-off
into the lake.
The defense showed that the construction of the defendant’s house received proper permitting and was approved by the county. The defendant’s drainage expert
opined that, not only was the defendant’s drainage system properly draining water from the defendant’s house;
but it was also handling a significant amount of run-off
from the plaintiff’s property. The defense additionally
contended that any water problems on the plaintiff’s
property could be resolved by rebuilding the drainage
swale and removing a pine tree that blocked the flow of
water into the lake, at a cost of approximately $2,500.
The jury found no negligence on the part of the defendant which was a legal cause of damage to the
plaintiff.
REFERENCE
Kafer vs. Fitzgerald. Judge Linda D. Schoonover, 08-1811.
Attorney for defendant: Nicholas P. Evangelo of
Thompson & Evangelo in Altamonte Springs, FL.
CONSTRUCTION SITE NEGLIGENCE
DEFENDANT’S VERDICT
Construction Site Negligence – Alleged negligent
awning installation – Claimed slip and fall in
silicone caulk – Torn rotator cuff – Two shoulder
surgeries performed.
Volusia County, FL
The plaintiff was employed as a chef in an
Ormond Beach resort where the defendant was
contracted to install an awning. The plaintiff
alleged that the defendant negligently allowed
silicone caulk to drop on the ground and failed to
clean the dangerous condition. As a result, the
plaintiff alleged that he slipped and fell. The
defendant denied leaving silicone caulk on the
ground and maintained that the plaintiff could not
establish the cause of his fall.
The plaintiff was 63 years old at the time in question. He
testified that he reported to work and was walking back
out to the parking lot to retrieve something from his car,
when he slipped and fell. The plaintiff alleged that he fell
in wet slippery caulk the area where the defendant was
installing a large awning. The plaintiff called a witness
who observed a wet glob on the ground where the
plaintiff fell.
The plaintiff was diagnosed with a complete tear of the
rotator cuff as a result of the fall. He underwent arthroscopic shoulder surgery which failed. The plaintiff then
underwent a second arthroscopic shoulder surgery. He
claimed that he has been left with a permanent impairment and is unable to return to his employment as a
chef. The plaintiff’s wife asserted a claim for loss of
consortium.
Volume 21, Issue 9, September 2011
The defendant argued that the silicone work had been
completed by its workers several days before the plaintiff’s fall and would not have been wet as alleged. The
defense maintained that the plaintiff did not actually
see caulk and could not identify the cause of his fall.
The defendant’s physical therapist testified that she performed a functional capacity evaluation of the plaintiff
and determined that he was able to perform light to
medium duty tasks. The defendant contended that the
plaintiff’s former employment as a chef was one of the
types of employment which he had been cleared to
perform.
The jury found no negligence on the part of the defendant which was a legal cause of injury to the plaintiff.
The defendant’s motions for costs and attorney fees are
pending, based on a proposal for settlement in the
amount of $75,000.
REFERENCE
Plaintiff’s orthopedic surgery expert: Jeffrey Martin
from Daytona Beach, FL. Defendant’s orthopedic
surgery expert: Kenneth Hawthorne from Ormond
Beach, FL. Defendant’s physical therapy expert:
Debra Shon from Jacksonville, FL.
Bennett vs. Kenco-2000 Inc. Case no. 2009-35291-CICI;
Judge William Parsons, 07-14-11.
Attorneys for defendant: Holly Howanitz and Richard
Ramsey of Wicker, Smith, O’Hara, McCoy & Ford in
Jacksonville, FL.
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13
EXCESSIVE USE OF FORCE
DEFENDANT’S VERDICT
Excessive Use of Force – Claimed civil rights
violations – St. Petersburg police officer hits
plaintiff in face with Taser.
U.S. District Court, Middle District of FL
This was a 42 U.S.C.A. Section 1983 civil rights
action brought against the City of St. Petersburg
and one of its police officers. The plaintiff alleged
that the officer used excessive force by hitting him
in the face with a Taser. The plaintiff also asserted
a state law claim of battery against the defendant,
City of St. Petersburg, based on the officer’s
actions. The defendants argued that the plaintiff
came at the officer, attempted to grab the Taser
and deflected it to his face.
The plaintiff was a man approximately in his late 20s to
early 30s at the time in question. Evidence showed that
he had an outstanding warrant for a misdemeanor
charge involving possession of marijuana.
The plaintiff testified that the defendant officer approached his vehicle while he was stopped in a gas station parking lot and asked him to step out of the car. The
plaintiff claimed that he got out as requested and was
facing the officer, with his hands in the air, when the officer struck him in the face with a Taser. A Taser is an electroshock weapon that uses electrical current to disrupt
voluntary control of muscles.
Evidence showed that the tip of the Taser probe broke
off in the plaintiff’s facial bone and remains lodged in his
chin. The plaintiff introduced graphic photographs depicting the Taser probe embedded in his face.
The defendant officer testified that he confirmed that
there was an active warrant against the plaintiff and
then asked him to exit his vehicle. The officer testified
that the plaintiff became belligerent and aggressively
came after him, prompting him to pull his Taser. The
plaintiff grabbed at the Taser and deflected it up, causing it to strike his face, according to the testimony of the
officer.
The defendant called the driver of an ambulance who
was stopped in the same gas station parking lot. The
ambulance driver testified that it appeared as though
the plaintiff was coming at the police officer. However,
the witness testified that he did not see the plaintiff grab
at the Taser.
The jury found for the defendant on all counts.
REFERENCE
Cherry vs. City of St. Petersburg, et al. Case no. 8:10=CV-667-TBM; Judge Magistrate Thomas B. McCoun, III,
07-13-11.
Attorney for defendant: Assistant City Attorney
Joseph P. Patner of St. Petersburg City Attorney’s
Office in St. Petersburg, FL.
INSURANCE OBLIGATION
$141,000 VERDICT
Insurance Obligation – Uninsured motorist claim –
Intersection collision – Aggravation of preexisting
spondylolisthesis – Lumbar fusion performed –
Cervical disc herniation – Additional surgery
recommended – No permanent injury found.
Pinellas County, FL
The plaintiff was a chiropractor in his mid-30s in
2003 when the Hummer in which he was a backseat passenger was struck in the side by an
uninsured vehicle. The defendant uninsured
motorist carrier stipulated that the tortfeasor
negligently entered the intersection and caused
the collision. Accordingly, the case proceeded only
on the issues of damages, causation and
permanency.
The plaintiff’s neurosurgeons testified that the plaintiff had
preexisting, but asymptomatic, spondylolisthesis before
the date of the impact. The plaintiff alleged that his
spondylolisthesis was aggravated by the trauma of the
accident to the point that an L5-S1 fusion was per-
formed in 2006. The plaintiff’s doctors also testified that
additional fusion surgery at the levels above and below
L5-S1 is indicated for the plaintiff’s future.
In addition, the plaintiff claimed a cervical disc
herniation, which his physicians causally related to the
subject accident. The plaintiff sought $183,000 in past
medical expenses. He made no claim for loss of future
wages. Plaintiff’s counsel requested total damages of
$4.5 million in closing statements.
Evidence showed that the plaintiff was involved in subsequent motor vehicle accidents in 2006 and 2008. The
defendant argued that the plaintiff’s medical records
from the 2006 collision indicated that he had sustained
a permanent injury as a result of that accident. Another
medical record noted that the plaintiff was not injured
before the 2008 accident, according to defense
arguments.
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The plaintiff had competed in two bodybuilding contests
after the date of the subject accident and had won first
place in one contest and second place in the other.
The defendant argued that the plaintiff never missed a
day from the gym and was able to perform 900-pound
leg presses. The defense maintained that the plaintiff’s
symptoms were not related to the accident and were
caused either by his weight training or his preexisting
condition.
The jury found that the plaintiff did not sustain a permanent injury as a result of the accident. The plaintiff was
awarded $141,000 in past medical expenses. The plaintiff has filed a post-trial motion for new trial/additur. The
defendant claims entitlement to attorney fees and costs
based on a proposal for settlement in the amount of
$150,000.
REFERENCE
Plaintiff’s neurology expert: Jed Weber from Tampa,
FL. Plaintiff’s neurosurgery expert: Thomas Tolli from
St. Petersburg, FL.
Wolstein vs. Progressive Express Insurance Company.
Case no. 0700355CI; Judge Douglas Baird, 06-23-11.
Attorneys for defendant: Valerie A. Dondero and
Robert J. Squire of Houck Anderson, P.A. in Miami,
FL.
MOTOR VEHICLE NEGLIGENCE
Auto/Bicycle Collision
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Auto/Bicycle Collision
– Cervical disc herniation – Cervical surgery
performed.
fore it entered the intersection. The witness also placed
the plaintiff outside of the pedestrian crosswalk at the
time of impact.
Pinellas County, FL
The defendant’s radiologist opined that the plaintiff’s cervical condition was preexisting and not caused by the
subject accident. The defense argued that the plaintiff’s
condition was consistent with his many years of physical
labor. The defendant’s orthopedic surgeon testified that
the side on which the plaintiff’s cervical surgery was performed was not the same side on which he complained
of pain and that his presentation was inconsistent.
The plaintiff, a man in his mid-30s at the time,
alleged that he was riding his bicycle across a
Pinellas County street, within the pedestrian
crosswalk and with the green “WALK” sign. The
plaintiff alleged that the defendant drove through
a red light and struck him. The defendant
maintained that the plaintiff was outside of the
crosswalk, darted in front of her vehicle and she
could not avoid the impact. The defense also
disputed the injuries which the plaintiff claimed to
have sustained as a result of the collision.
The plaintiff testified that he came up to the intersection,
stopped and pressed the button for the walk light. When
the plaintiff saw the “little green man” on the other side
of the street, he claimed that he began riding his bicycle across the pedestrian walkway. The plaintiff alleged
that the defendant negligently entered the intersection
and struck him.
The plaintiff was diagnosed with a cervical disc
herniation, which his physician causally related to the bicycle accident. The plaintiff underwent cervical surgery
and claimed $60,000 in past medical expenses.
The defendant testified that the plaintiff “came out of
nowhere” and she did not see him prior to the impact. A
witness, under subpoena by the defendant but called
by the plaintiff, testified that the plaintiff’s bicycle came
down the road at a fast speed and never stopped be-
Volume 21, Issue 9, September 2011
The defendant also introduced a video surveillance depicting the plaintiff, a native of Mexico, working at a
construction site, lifting and operating equipment after
the date of the accident. The defendant argued that
the video was inconsistent with the plaintiff’s claims that
he was unable to return to work.
The jury found no negligence on the part of the defendant which was a legal cause of injury to the plaintiff.
The defendant has filed for attorney fees and costs
based on a proposal for settlement. The plaintiff has
filed a notice of appeal.
REFERENCE
Defendant’s orthopedic surgery expert: Charles Finn
from St. Petersburg, FL. Defendant’s radiology
expert: Michael Foley from Tampa, FL.
Huapilla-Paredes vs. Mitchell. Case no. 1003605CI;
Judge John Schaefer, 06-22-11.
Attorneys for defendant: Raymond A. Haas and Terry
L. Kors, Jr. of Haas, Lewis, DiFiore, P.A. in St.
Petersburg, FL.
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Auto/Truck Collision
$3,000,000 VERDICT
Motor Vehicle Negligence – Auto/Truck Collision –
14-hour rule cited in death of truck driver on
Florida interstate – Wrongful death.
was running behind schedule due to a delay loading
the truck, and was expected to deliver her load by 6:00
a.m. the following morning.
Flagler County, FL
The defendant argued that the deceased should have
taken evasive maneuvers and had the necessary time
to do so. Both sides brought testimony from accident
reconstructionists, economists and human factors experts. The investigating officer and medical examiner
also testified.
In this matter, a woman sued on behalf of her
deceased husband who was killed by a truck
driver on a Florida interstate. The plaintiffs
argued that the defendant driver was liable for
the collision and the defendant employer should
not have had her driving that long, in which case
the subject incident would not have occurred. The
defendants contended that the decedent was
liable for the collision via a lack of evasive action.
The collision occurred at 4:00 a.m. on December 22,
2009, on Interstate 95 in Flanger County, Florida. The decedent, Julio R., 33, was driving his tandem tractor-trailer
when the defendant, Betty Ann T., a driver for Williamson
Distributors, merged her own tractor-trailer onto the interstate from an emergency lane. The decedent collided
with the rear of her truck, killing Julio R.
The decedent’s widow filed suit against Betty Ann T. and
her employer Williamson Distributors on behalf of herself,
her deceased husband, and her two children. The
wrongful death action was heard before Judge Dalton
in the United States District Court for the Middle District of
Florida in Jacksonville.
At trial, the plaintiff argued for the driver’s negligence
through her failure to abide by the 14-hour “hour of service” rule of the Florida Motor Carrier Safety Act, which
stipulates that after 14 hours of on duty time a truck
driver is required to go off duty for at least ten hours. Evidence presented by the plaintiff showed that the defendant driver had been on shift since 8:30 a.m. the
previous morning. They further showed that the driver
After two hours deliberation, the jury returned a $3 million
verdict for the plaintiffs, including $1.5 million in economic losses for the widow and her children, as well as
$500,000 for each of the three surviving family
members.
REFERENCE
Plaintiff’s Accident Reconstructionist expert: Jeffrey
Armstrong from Lutz, FL. Plaintiff’s Forensic
Economics expert: Fred Raffa. Plaintiff’s Human
Factors expert: Mike Maddox from Greensboro/
Winston-Salem, NC. Plaintiff’s Trucking expert: Paul
Paxton from Pensacola, FL. Defendant’s Accident
Reconstructionist expert: Donald Fournier from Lake
Mary, FL. Defendant’s Forensic Economics expert:
Paul Mason from Jacksonville, FL. Defendant’s
Human Factors expert: Mark Edwards.
Glenda Rentas, as Personal Representative of the Estate
of Julio A. Rentas, Jr. vs. Betty Ann Tucker and Williamson
Distributors. Case no. 3:10-cv-00369-J-99TJC-JBT; Judge
Roy B. Dalton, Jr., 03-16-11.
Attorneys for plaintiff: Henry “Hank” Didier, Jr. and
P. Alexander Gillen of Didier Law Firm, P.A. in
Orlando, FL, and Kevin Liles of Liles Harris PLLC in
Corpus Christi, TX. Attorneys for defendant: Paul S.
Jones and James T. Armstrong of Luks & Santaniello,
LLC in Orlando, FL.
$800,000 RECOVERY
Motor Vehicle Negligence – Auto/Truck Collision –
Employee truck driver strikes rear of plaintiff
vehicle – Cervical and lumbar injuries with disc
involvement – Ongoing neck and back pain.
Miami-Dade County, FL
The plaintiff alleged that a pick-up truck, driven
by the defendant driver and owned by the
defendant company, negligently struck his vehicle
from behind at a Miami-Dade County intersection.
The plaintiff contended that on March 30, 2006, he exited a busy highway in Miami-Dade County and came
to a stop for traffic that was stopped on the off-ramp for
a traffic light ahead. The plaintiff claimed that the defendant driver also attempted to brake his pick-up truck,
but skidded and struck the back of the plaintiff’s car.
Evidence showed that the force of the collision was substantial enough to cause the defendant driver’s airbags
to deploy. The plaintiff’s accident reconstruction expert
opined that the defendant truck driver was driving at an
excessive speed and should have been able to observe the plaintiff’s stopped vehicle and avoid striking it.
The plaintiff claimed cervical and lumbar injuries with
disc involvement as a result of the collision. He complained of continuing neck and back pain which restricted his physical activities.
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The parties reached an $800,000 settlement prior to trial
which included a confidentiality clause pertaining to the
identities of the parties involved.
Attorneys for plaintiff: Michael A Haggard and
Jeannete C. Lewis of The Haggard Law Firm in Coral
Gables, FL.
REFERENCE
John Doe vs. ABC Company. 06-15-11.
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Auto/Truck Collision –
Claimed negligent lane change by tractor-trailer –
Plaintiff’s vehicle is allegedly forced off the road –
Soft tissue injuries to neck, shoulder, and back.
damages including $26,306 in past medical expenses;
$84,541 in future medical expenses; $1,294 in past loss
of wages; $21,358 in future loss of wages and $6,475 in
property damage to her vehicle.
Polk County, FL
The defendant driver denied talking on his cell phone at
the time in question. The defense maintained that the
accident resulted from the plaintiff’s loss of control of her
vehicle in a curve.
The plaintiff alleged that a tractor-trailer, driven
by the defendant driver and owned by the
defendant corporation, negligently changed lanes
and forced her vehicle off the road. The
defendants denied negligence and maintained
that the plaintiff simply missed the curve to the
right and went off into the median, losing control
of her vehicle.
The plaintiff was driving westbound on Highway 60 just
west of Lake Wales, Florida when she approached the
defendant’s 1986 Freightliner tractor and trailer in the
right lane. The plaintiff testified that, as she was passing
the truck, it began to enter her lane and forced her vehicle off the left side of the road. The plaintiff contended
that the defendant driver was talking on his cell phone
at the time.
Evidence showed that the plaintiff’s vehicle went into the
left median, returned to the road surface and went
across both lanes of traffic and off the right shoulder. The
plaintiff’s vehicle then reentered the road from the right
shoulder and struck the passenger side tires of the defendant’s tractor and then struck the trailer.
The plaintiff, age 33 at the time, claimed unresolved soft
tissue neck, shoulder and back injuries as a result of the
accident. She sought a total of $139,974 in economic
The jury found no negligence on the part of the defendant which was a legal cause of injury to the plaintiff.
The plaintiff filed a proposal for settlement in the amount
of $45,000. The defendant’s proposal settlement was in
the maximum amount of $25,000. The defendant was
granted an award for attorney fees and cost in the
amount of $55,108.
REFERENCE
Plaintiff’s accident reconstruction expert: Elliot L.
Stern from Tampa, FL. Plaintiff’s orthopedic surgery
expert: Robert K. Lerner from Winter Haven, FL.
Defendant’s accident reconstruction expert: Jeffrey D.
Armstrong from Lutz, FL.
Emanuel vs. Holland, et al. Case no. 09-CA-10805;
Judge Michael J. McCarthy.
Attorney for plaintiff: Angela R. Pulido of Lilly,
O’Toole & Brown, LLP in Lake Wales, FL. Attorney for
defendant: David A. Finlay of Law Office of Robert A.
Dalessio in Tampa, FL.
Broadside Collision
$10,000 VERDICT
Motor Vehicle Negligence – Broadside Collision –
Cervical disc herniations with fusion surgery –
Foot fracture with surgery – Damages/causation
only – No permanent injury found.
Orange County, FL
The defendant did not dispute negligence in
pulling out from a stop sign and striking the
plaintiff’s car in the side. Accordingly, the case
proceeded on the issues of damages and
causation only.
Volume 21, Issue 9, September 2011
The plaintiff’s doctors testified that the subject 2004 collision caused disc herniations at three levels of the plaintiff’s cervical spine. The plaintiff underwent a cervical
fusion to treat the herniations. The plaintiff also claimed
that the collision caused fractures to the first metatarsal
joint of her foot which necessitated fusion surgery.
The plaintiff, age 40 at the time, alleged that her accident-related injuries prevented her from returning to her
prior employment in time-share sales. Plaintiff’s counsel
requested a total of $3.6 million in damages during
closing statements.
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The defendant’s medical experts testified that diagnostic
films showed that the plaintiff’s cervical condition was
degenerative, preexisted the date of the collision and
was not caused by the accident. The defense also argued that the plaintiff did not complain off foot pain
during her emergency room visit or a doctor’s visit one
week post-accident.
REFERENCE
Lozano vs. Giles. Case no. 2005-CA-006690; Judge
Jose R. Rodriguez, 01-28-11.
Attorneys for defendant: Nicholas P. Evangelo of
Thompson & Evangelo in Altamonte Springs, FL, and
Gregory P. Gergel in Orlando, FL.
The jury found that the plaintiff did not sustain a permanent injury as a result of the accident. The plaintiff was
awarded $10,000 in economic damages. The plaintiff’s
motion for new trial is pending.
Head-on Collision
$790,730 RECOVERY
Motor Vehicle Negligence – Head-on Collision –
Excessive speed – Failure to maintain control of
tractor-trailer – Head-on collision in opposing
lanes – Wrongful death.
Broward County, FL
This action arose from the death of the decedent
on September 20, 2005, in Broward County after
his car was struck head-on by the defendant’s 18wheeler. The plaintiff alleged that the defendant’s
tractor-trailer driver was traveling at an excessive
speed and failed to maintain control of his truck,
resulting in the fatal head-on collision.
On the date of the accident, the decedent was driving
northbound. The plaintiff claimed that the defendant’s
tractor-trailer driver was driving too fast, lost control of the
truck and crossed the center line of travel. The defendant’s tractor-trailer entered the northbound traffic lanes
and collided head-on with the decedent’s oncoming
vehicle. The plaintiff contended that a tire on the tractortrailer blew out after the crash sequence started as
confirmed by eyewitnesses.
The decedent, who was in his 30s, died at the scene as
a result of the injuries he sustained in the collision. He
was an undocumented worker and made no claim for
economic damages. The decedent was survived by
one minor child who resided in Mexico.
The case was settled for a total of $790,730 prior to trial,
with a confidentially agreement as to the identity of the
parties.
REFERENCE
G.O. as Personal Representative of the Estate of R.G. vs.
ABC Concrete Company. 03-03-11.
Attorneys for plaintiff: William A. Haggard and
Jeannete C. Lewis of The Haggard Law Firm in Coral
Gables, FL.
Left Turn Collision
$31,000 GROSS VERDICT
Motor Vehicle Negligence – Left Turn Collision –
Neck and lower back injuries – Percutaneous
decompression – Lumbar fusion – Chronic back
pain – Damages/causation only – No permanent
injury found.
Hillsborough County, FL
The plaintiff was driving a dump truck, in the
course and scope of his employment, when the
defendant pulled into the intersection to make a
left turn and struck the side of his truck. The
defendant’s employer was also named as a
defendant in the case. The defendants stipulated
to negligence in causing the impact. The
defendant disputed the injuries which the plaintiff
claimed to have sustained as a result of the
collision.
The plaintiff was driving a dump truck with the right-ofway northbound on US Route 41 in Gibsonton. The defendant was proceeding westbound on Gibsonton
Drive. The defendant stopped at the train tracks along
Route 41 for a passing train, waiting to make a left turn.
After the railroad gates went up, the defendant turned
left and was crossing Route 41 when the front of his pickup truck struck the passenger side of the plaintiff’s dump
truck.
Evidence showed that the plaintiff’s 1997 Freightliner
dump truck sustained $1,092 in property damage. The
plaintiff’s 2002 Ford F250 pick-up truck sustained
$15,500 in damage.
The plaintiff, age 52 at the time, claimed injuries to his
neck and lower back as a result of the collision. He underwent a percutaneous plasma disc decompression
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at the T12-L1 level and a fusion at L5-S1, which his physicians causally related to the impact. The plaintiff also
underwent psychiatric treatment for chronic back pain.
The defendant argued that the plaintiff’s neck and back
conditions were either preexisting or were caused by a
subsequent motor vehicle accident. The defense
claimed that the plaintiff failed to disclose the subsequent accident to his doctors or to the defendants
during discovery.
The jury found that the plaintiff did not sustain a permanent injury as a result of the accident. The plaintiff was
awarded $31,000 in past medical expenses. After appropriate set-offs and the addition of the plaintiff’s costs,
a final judgment in the amount of $35,000 was entered
for the plaintiff. The defendant had offered a total of
$125,000 to settle the case prior to trial.
REFERENCE
Plaintiff’s neurosurgery expert: Robert Nucci from
Tampa, FL. Plaintiff’s physical medicine/rehabilitation
expert: Beverly Eadie from Tampa, FL. Plaintiff’s
psychiatric expert: Ashit Vijapura from Plant City, FL.
Defendant’s pain management expert: Denise Griffin
from Tampa, FL. Defendant’s psychiatric expert:
Michael Maher from Tampa, FL.
Brungart vs. Allnut, et al. Case no. 06-007084; Judge
Robert A. Foster, Jr.
Attorneys for plaintiff: David C. Dismuke and
Douglas K. Burnetti of Burnetti, P.A. in Lakeland, FL.
Attorneys for defendant: David A. Finlay and Kim
Marie Murano of Law Office of Robert A. Dalessio in
Tampa, FL.
Multiple Vehicle Collision
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Multiple Vehicle
Collision – Three vehicles strike in rear end
collision – Cervical disc herniation claimed –
Injuries to lumbar and thoracic spine.
traffic attempting to pass the other cars. Finally, the
plaintiff shot through an opening in traffic, cut in front of
his car and slammed on the brakes, according to the
defendant Chapman.
Orange County, FL
The co-defendant Hancock corroborated the testimony
that the plaintiff was driving erratically before the collision
and testified that her actions appeared intentional. Hancock maintained that he could not avoid the collision
when Chapman made a sudden stop due to the first
impact.
The plaintiff was a female in her 40’s who alleged
that she was driving on Interstate Route 4 in
Orange County when her car was negligently
impacted from behind by a vehicle driven by the
first defendant, Chapman. The plaintiff claimed
that the co-defendant, Hancock, then negligently
struck the Chapman vehicle and pushed it into the
rear of her car for a second impact. The
defendants maintained that the plaintiff caused
the collision by cutting in front of the Chapman
vehicle and suddenly slamming on her brakes.
The plaintiff testified that she felt two distinct impacts
when each of the defendants caused separate collisions to the back of her car. The plaintiff denied that she
hit her brakes before the impacts.
The plaintiff was diagnosed with a non-surgical cervical
disc herniation and sprain and strain injuries to her lumbar and thoracic spine, which her doctor causally related to the accident. The plaintiff complained of
ongoing neck and back pain.
The defendant Chapman testified that the plaintiff attempted to cut in front of his car and, when he beeped
his horn at her, she gave him “the finger.” He testified
that the plaintiff’s vehicle was moving back and forth in
Volume 21, Issue 9, September 2011
The defendant’s orthopedic surgeon testified that the
plaintiff’s cervical condition was degenerative and was
not traumatically induced by the collision.
The jury found no negligence on the part of the defendants which was a legal cause of injury to the plaintiff.
The plaintiff has filed post-trial motions. The defendant
Chapman is expected to move for attorney fees and
costs, based on a proposal for settlement.
REFERENCE
Defendant’s orthopedic surgery expert: Joseph
Uricchio from Winter Park, FL.
Griggs vs. Chapman, et al. Case no. 2010 CA 013450;
Judge Jose Rodriguez, 08-12-11.
Attorney for defendant Chapman: Nicholas P.
Evangelo of Thompson & Evangelo in Altamonte
Springs, FL. Attorney for defendant Hancock: Timothy
S. Kazee of Vernis & Bowling in Deland, FL.
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Parking Lot Collision
$27,745 VERDICT
Motor Vehicle Negligence – Parking Lot Collision –
Claimed neck and back injuries with disc
herniations – Damages/causation only – No
permanent injury found.
Palm Beach County, FL
The elderly defendant stipulated to negligence in
colliding with the plaintiff’s car in a Palm Beach
County parking lot. Accordingly, the case was
tried on the issues of damages and causation
only.
The plaintiff was proceeding on an interior road way
within the parking lot, while the defendant was driving
between rows of parked cars on April 28, 2009. The defendant struck the plaintiff’s car on the passenger side
causing the plaintiff’s airbag to deploy.
The plaintiff first sought medical treatment three days
post-accident. She claimed neck and back injuries with
disc herniations which her treating orthopedic surgeon
causally related to the collision.
The defendant appeared only for jury selection and did
not testify at trial. The defense argued that the plaintiff’s
medical record showed prior back complaints which
she did not share with her doctor. The defendant’s radiologist opined that the plaintiff’s neck and back conditions preexisted the date of the subject impact.
The jury found that the collision was a legal cause of injury to the plaintiff, but that she did not suffer a permanent injury as a result of the accident. The plaintiff was
awarded a total of $27,745 comprised of past and future medical expenses.
REFERENCE
Brashears vs. Kleiner. Case no. 50 2010
CA003018XXXXMM (AJ); Judge Robin Rosenberg, 0111-11.
Attorney for defendant: Kevin C. Beuttenmuller in
Royal Palm Beach, FL.
Rear End Collision
$43,057 VERDICT
Motor Vehicle Negligence – Rear End Collision –
Elbow fracture – TMJ – Damages/causation only –
Claim for medical expenses only.
Hillsborough County, FL
The defendant did not contest negligence in this
action which arose from a rear end collision in
heavy traffic. However, the defendant maintained
that the impact to the back of the plaintiff’s car
was minimal and did not cause the injuries
alleged. The plaintiff withdrew his demand for
non-economic damages prior to trial and sought
compensation for past and future medical
expenses only.
The plaintiff was a 50-year-old man at the time of the
accident in 2007. He did not seek medical treatment
immediately after the collision, but presented to a walkin medical clinic six days later. The plaintiff was diagnosed with hairline fractures to his left elbow and TMJ,
which his doctors opined were caused by the subject
collision. The plaintiff admitted to preexisting neck and
back injuries which were unrelated to the collision.
dant’s TMJ expert testified that the plaintiff’s diagnostic
films showed a prior degenerative condition of the TMJ
joints. The defendant’s orthopedic surgeon testified that,
in his opinion, the plaintiff’s elbow condition was also
unrelated to the accident.
The jury awarded the plaintiff $43,057 in damages. The
award was comprised of $30,557 in past medical expenses and $12,500 in future medical expenses.
REFERENCE
Plaintiff’s orthopedic surgery expert: Fabio Fiore from
Brandon, FL. Plaintiff’s TMJ expert: David Zelin from
Tampa, FL. Defendant’s orthopedic surgery expert:
Steven Knezevich from Tampa, FL. Defendant’s TMJ
expert: Nelson D. Castellano from Tampa, FL.
Thompson vs. Wormser. Case no. 09-CA-005972; Judge
Martha Cook, 12-14-10.
Attorney for plaintiff: John P. Berke of Bernetti, P.A.
in Lakeland, FL. Attorneys for defendant: Sunia Y.
Marsh and Scott R. Toner of Law Office of Gregory
Stark in Tampa, FL.
The defendant contended that the impact to the plaintiff’s vehicle was light, as evidenced by the minimal
property damage sustained by the vehicles. The defen-
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Single Vehicle Collision
$27,000 GROSS VERDICT
Motor Vehicle Negligence – Single Vehicle
Collision – Car strikes telephone pole – Pelvis
fracture – Femur fracture – Ankle fracture –
Ruptured spleen – Multiple surgeries performed –
50% comparative negligence for failure to wear
seatbelt.
Palm Beach County, FL
The defendant driver did not dispute negligence
in losing control of her vehicle and striking a
telephone pole, causing injuries to the plaintiff
who was a passenger in the vehicle. However, the
defendant contended that the plaintiff was
comparatively negligent for failure to wear her
seatbelt.
The plaintiff was a 19-year-old female at the time of the
collision. She was airlifted from the accident scene to
the hospital where fractures of the pelvis, femur and ankle were diagnosed along with a ruptured spleen. The
plaintiff was hospitalized for a week after the collision
and underwent multiple surgeries. The plaintiff claimed
$325,000 in past medical expenses.
The defendant’s biomechanical engineer testified that
the plaintiff’s most significant injuries resulted from her
failure to wear a seatbelt.
The jury found the defendant 50% negligent and the
plaintiff 50% comparatively negligent for failure to wear
her seatbelt. The jury also found that the plaintiff sustained a permanent injury as a result of the accident
and awarded her $27,000 in damages, reduced to a
net award of $13,500.
REFERENCE
Plaintiff’s orthopedic surgery expert: Michael Zeide
from West Palm Beach, FL. Plaintiff’s seatbelt expert:
Ralph Aronberg from West Palm Beach, FL.
Defendant’s seatbelt expert: Michael Scott from San
Antonio, TX.
Perez vs. Scull. Case no. 2009-CA-005403; Judge
Meenu Sasser, 02-10-11.
Attorney for defendant: Michael A. Robb of Clark,
Robb, Mason, Coulombe & Buschman in Coral
Springs, FL.
MUNICIPAL LIABILITY
$19,114 GROSS VERDICT
Municipal Liability – Police vehicle collides with
taxicab – Alleged failure of officer to use due
caution while entering intersection on red light –
Hand fracture with surgery – Back injury with
surgery – 50% comparative negligence found.
Pinellas County, FL
The plaintiff, in this action against the City of St.
Petersburg, claimed that he was driving a taxicab
through an intersection on a green light when
one of the defendant’s police officers negligently
entered on a red light and collided with his car.
The defendant maintained that the officer was
proceeding through the intersection in full
emergency mode when the plaintiff pulled in front
of his oncoming police vehicle and failed to yield
the right-of-way.
The plaintiff was a taxicab driver in his early 60s at the
time of the collision. He alleged that the defendant’s officer failed to use appropriate caution when entering
the intersection on a red light. The plaintiff maintained
that the officer struck the side of his cab as he proceeded with the right-of-way.
The plaintiff sustained fractures to the metacarpal bones
of his left hand which required surgery. He also underwent back surgery several years post-accident and his
physician causally related the back surgery to the subject accident.
Volume 21, Issue 9, September 2011
The defendant’s police officer testified that he was responding to a shooting and had activated the flashing
lights and siren of his vehicle. The officer testified that he
was entering the intersection with caution when the
plaintiff’s cab pulled in front of him and he could not
avoid the impact.
The defendant’s orthopedic surgeon opined that the
plaintiff’s back condition was preexisting and that his
back surgery was not necessitated by the accident.
The jury found the defendant 50% negligent and the
plaintiff 50% comparatively negligent. The jury also
found that the plaintiff sustained a permanent injury as a
result of the collision. The plaintiff was awarded $19,114
in damages reduced to a net award of $9,557. The
award was comprised of $9,114 in past medical expenses and $10,000 in past pain and suffering. A
$10,000 PIP off-set applied to the award. The defendant
claims entitlement to attorney fees and costs based on
a proposal for settlement in the amount of $20,000. The
net result is expected to be a judgment for fees/costs in
favor of the defendant.
REFERENCE
Weiner vs. City of St. Petersburg. Case no. 06004228CI;
Judge George M. Jirotka, 05-18-11.
Attorney for defendant: Assistant City Attorney
Joseph P. Patner of St. Petersburg City Attorney’s
Office in St. Petersburg, FL.
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DEFENDANT’S VERDICT
Municipal Liability – Alleged negligent operation
of police vehicle – Collision while passing – Neck
and back injuries with disc involvement.
Pinellas County, FL
The plaintiff alleged that a police officer,
employed by the defendant, City of St. Petersburg,
negligently lost control of his police vehicle while
passing and struck the left side of the plaintiff’s
car. The defendant maintained that the officer
was responding to a call, with lights and siren
activated, when the defendant turned left and
caused the collision.
The defendant’s officer testified that he was responding
to a call and had turned on the flashing lights and siren
of his police vehicle. The officer claimed that he was
passing the plaintiff’s car on the left, when the plaintiff
suddenly made a left turn and collided with the police
vehicle.
The defendant’s orthopedic surgeon opined that the
plaintiff’s neck and back complaints were not related to
the subject impact.
The jury found no negligence on the part of the defendant’s officer which was a legal cause of injury to the
plaintiff. The plaintiff’s post-trial motion for a new trial is
pending. The defendant has filed for costs and attorney
fees based on a proposal for settlement.
The plaintiff was a man in his late 40’s to early 50’s at the
time of the collision. He contended that the defendant’s
officer did not have his lights and siren activated and attempted to pass him on his left side. The plaintiff alleged
that the officer entered his lane of travel and struck the
left side of his vehicle.
REFERENCE
The plaintiff was diagnosed with neck and back injuries
with disc involvement which he claimed were causally
related to the accident.
Attorney for defendant: Assistant City Attorney
Joseph P. Patner of St. Petersburg City Attorney’s
Office in St. Petersburg, FL.
Aziz vs. City of St. Petersburg. Case no. 06002923CI;
Judge Pamela A. Meacomes Campbell, 06-22-11.
PERSONAL NEGLIGENCE
$109,242 GROSS VERDICT
Personal Negligence – Negligent failure to lock
extension ladder – Top of ladder slides down
under plaintiff’s weight – Fall from ladder – Facial
fractures – Wrist fracture – 60% comparative
negligence found.
The plaintiff sustained a left orbital fracture as a result of
the fall. She underwent surgery to repair the orbital fracture and complained of continuing double vision. The
plaintiff also sustained fracture of her left wrist which also
required surgery.
Miami-Dade County, FL
The defendant testified that the plaintiff set up the ladder and then climbed it. The defendant argued that the
plaintiff failed to make sure that the extension section of
the ladder was properly locked.
The plaintiff was a female professional roofer, in
her early 50s, who was working on the
defendant’s roof in 2007, when she fell from an
extension ladder. The plaintiff alleged that the
defendant provided the ladder in an unsafe
condition and failed to properly lock the extension
in place, causing her fall. The defendant denied
that he set up the ladder for the plaintiff and
contended that the fall was caused by her own
negligence in failing to properly lock the
extension in place.
The plaintiff testified that her ladder was set up at the
front of the house; so the defendant provided his ladder
and set it up to the roof in the rear of his house for her to
use. She testified that, as she was climbing the ladder
set up by the defendant, the top extension section slid
down causing her to fall.
The jury found the defendant 40% negligent and the
plaintiff 60% comparatively negligent. The plaintiff was
awarded $109,242 in damages, reduced accordingly.
REFERENCE
Plaintiff’s hand surgery expert: Elizabeth A. Oulette
from North Miami Beach, FL. Plaintiff’s maxillofacial
surgery expert: Michael Peleg from Miami, FL.
Acosta vs. Santos. Case no. 09-37373 CA 23; Judge Ellen Leesfield, 06-10-11.
Attorney for plaintiff: Scott T. McCullough of
McCullough & Leboff in Davie, FL. Attorney for
defendant: Abigail Morrison Cohen of Marshall,
Dennehey, Warner, Coleman & Goggin in Fort
Lauderdale, FL.
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PREMISES LIABILITY
Fall Down
$150,000 RECOVERY
Premises Liability – Fall Down – Slip and fall in
liquid on restaurant floor – Failure to maintain
floors in safe condition – Fractured patella with
surgery.
Leon County, FL
The female plaintiff alleged that she was a patron
in the defendant’s restaurant/bar in Leon County
on August 6, 2008. The plaintiff claimed that she
slipped and fell as a result of a foreign liquid
which the defendant negligently allowed to
remain on its floor. The defendant denied notice
of the spill.
While walking to the restroom, the plaintiff alleged that
she slipped and fell as a result of a pool of an unknown
liquid on the floor. The plaintiff contended that the defendant’s staff immediately came over and filled out an
incident form indicating that plaintiff slipped on a pool
of liquid.
dark bar area. The plaintiff claimed that the defendant
had no policies or procedures for monitoring its floor for
dangerous conditions and that there had been at least
seven slip and falls in the establishment prior to the
plaintiff’s fall.
The plaintiff, age 36 at the time, was diagnosed with a
comminuted fracture of patella as a result of the fall.
She underwent knee surgery to repair the fracture.
The case was settled prior to trial for $150,000. The settlement agreement requires confidentiality regarding
the names of the parties involved.
REFERENCE
Jane Doe vs. XYZ Corporation. Case no. 08-CA-XXXXX,
06-10-11.
Attorneys for plaintiff: William A. Haggard and Todd
J. Michaels of The Haggard Law Firm in Coral
Gables, FL.
The plaintiff argued that the defendant restaurant went
to great lengths to ensure that its floors remained at a
high gloss, making liquid virtually impossible to see in the
DEFENDANT’S VERDICT
Premises Liability – Fall Down – Alleged failure to
maintain shopping mall – Slip and fall on banana
– Meniscus tear – Arthroscopic knee surgery
performed.
Miami-Dade County, FL
The plaintiff alleged that she was walking in the
Dolphin mall in Miami, owned by the defendant
corporation and maintained by the defendant
cleaning company, when she slipped and fell as a
result of a banana on the floor. The defendants
denied that the plaintiff was caused to fall by a
banana or any other foreign substance on the
floor.
The plaintiff was a female, approximately 40 years old at
the time of the fall on June 9, 2005. She testified that
she was attending a concert at the defendant’s mall
with her daughters when she slipped and fell to her
knees. The plaintiff contended that the banana which
caused her fall appeared smashed, as if it had been on
the floor for some time. One of the plaintiff’s daughters
testified that she also observed the smashed banana
on the floor after her mother’s fall.
The plaintiff’s orthopedic surgeon testified that the plaintiff sustained bilateral knee injuries in the fall, necessitating right arthroscopic knee surgery which was performed
some two years post-accident.
Volume 21, Issue 9, September 2011
The defendant called mall security and maintenance
employees who testified that they arrived immediately
after the plaintiff’s fall and did not see a banana or other
foreign substance on the floor. The defendant argued
that photographs, taken shortly after the fall, depicted a
clean and dry floor.
The defense also argued that the plaintiff initially complained of left knee pain, yet underwent arthroscopic
surgery to her right knee two years later. The defendant’s
orthopedic surgeon opined that the plaintiff’s knee condition was degenerative and not causally related to the
subject fall.
The jury found no negligence on the part of the defendants which was a legal case of injury to the plaintiff. The
plaintiff has filed a post-trial motion for new trial. The defendant has moved for attorney fees and costs based
on a proposal for settlement.
REFERENCE
Plaintiff’s orthopedic surgery expert: Stephen Wender
from Miami, FL. Defendant’s orthopedic surgery
expert: Michael Aptman from Miami, FL.
Guevara vs. Dolphin Mall Associates, LLC, et al. Case
no. 07-318-73CA 27; Judge Maxine Cohen Lando, 0520-11.
Attorneys for defendant: Jonathan R. Weiss and Jami
Lee Gursky of Cole, Scott & Kissane, P.A. in Miami,
FL.
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23
Falling Object
DEFENDANT’S VERDICT
Premises Liability – Falling Object – Claimed
dangerous free-standing sign in office supply
store – Sign allegedly falls and strikes plaintiff –
Herniated cervical and lumbar discs – Lumbar
surgery performed.
Palm Beach County, FL
The plaintiff was a 38-year-old female who was
shopping in the defendant’s office supply store,
when she claimed that a free-standing sign fell
and struck her. The defendant denied that sign
was dangerous and disputed the injuries which
the plaintiff claimed to have sustained as a result
of the incident.
The plaintiff contended that she was walking past the
defendant’s five-foot display sign in 2009, when the sign
fell and struck her and knocked her to the floor. The
plaintiff was diagnosed with disc herniations in her cervical and lumbar spine which her physician causally related to the incident. The plaintiff underwent a lumbar
microdiscectomy.
The defendant argued that the sign in question, which
weighed approximately 30 pounds, was stable and appropriately placed. The defense maintained that there
was no evidence as to the cause of the sign’s fall and it
could have been knocked over onto the plaintiff. In addition, the defense disputed that the plaintiff sustained
disc herniations as a result of the incident.
The jury found no negligence on the part of the defendant which was a legal cause of injury to the plaintiff.
REFERENCE
Plaintiff’s orthopedic surgery expert: Thomas Rousch
from West Palm Beach, FL. Plaintiff’s physiatry
expert: Craig Lichtblau from North Palm Beach, FL.
Defendant’s orthopedic surgery expert: Michael
Zeide from West Palm Beach, FL.
Morris vs. Staples the Office Superstore East, Inc. Case
no. 502010CA016598; Judge Lucy Brown, 03-09-11.
Attorney for defendant: G. Jeffrey Vernis of Vernis &
Bowling of Palm Beach in North Palm Beach, FL.
Hazardous Premises
DEFENDANT’S VERDICT
Premises Liability – Hazardous Premises – Alleged
dangerous condition created by church sprinkler
system – Slip and fall – Cervical disc herniation
with surgery.
Palm Beach County, FL
The plaintiff was walking through the breezeway
of the defendant church in Lake Worth when she
claimed she was caused to slip and fall as a result
of the sprinkler system. The defendant denied that
the sprinkler system was dangerous and
contended that the gates of the breezeway were
opened without its authorization by a tenant of
the building. The tenant was listed as a Fabre
defendant on the verdict form.
The plaintiff testified that she was going to the premises
of the Fabre defendant, a tenant in the defendant’s
church. The plaintiff contended that she was walking on
a sidewalk through the building’s breezeway when the
sprinklers suddenly went off, causing her to slip and fall in
the water. The plaintiff was diagnosed with a cervical
disc herniation which her physician causally related to
the fall. She underwent surgery to treat the disc
herniation.
The defendant argued that the breezeway had been
opened without its consent or knowledge and that there
were other paths which the plaintiff could have taken to
avoid the sprinklers. The defense also contended that
the plaintiff’s cervical condition was preexisting and not
causally related to the fall.
The jury found no negligence on the part of the defendant which was a legal cause of injury to the plaintiff.
The defendant’s motion for attorney fees and costs is
pending.
REFERENCE
Olguin vs. Church of the Nazarine of Lake Worth, Inc.
Case no. 20212XXXXXMB; Judge David Crow, 06-10-11.
Attorney for defendant: Charles E. Benson of Julie A.
Taylor & Associates in Fort Lauderdale, FL.
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Inadequate Lighting
DEFENDANT’S VERDICT
Premises Liability – Inadequate lighting – Alleged
dangerous shell/rock roadway at resort –
Inadequate marking of area under construction –
Slip and fall – Hip fracture with surgery.
Lee County, FL
The defendant in this premises liability action was
the owner/operator of a Sanibel Island resort,
where the plaintiff fell while walking on a path
made of crushed shell/rock. The plaintiff alleged
that the fall was caused by a dangerous, slippery
condition of the roadway, as well as inadequate
lighting in the area. The defendant maintained
that no dangerous condition existed, and that
plaintiff’s fall was caused by her own negligence.
internal fixation surgery to repair the fracture and
claimed that she has been left with a permanent
disability.
The defendant argued that the shell/rock roadway was
a safe and common design on the island, and that
plaintiff had conceded in deposition that the lighting
was sufficient to enable her to see where she was walking. The defendant argued that the plaintiff had consumed alcohol prior to her fall, which may have
contributed to the accident. Although the plaintiff denied it, the defendant claimed that the paramedic “run
report” documented that she had consumed alcohol
prior to the accident.
The defense also argued that, despite the plaintiff’s objective injury, she has continued to work 50 hours per
week.
The plaintiff testified that she was a patron of a jazz club
located on the property when she exited the club to
smoke a cigarette. After exiting the club, she walked approximately 100 yards down a roadway constructed of
crushed shell. The plaintiff was returning to the club on
the same roadway, when she claimed that she slipped
and fell. The plaintiff alleged that the shell/rock was wet
from humidity in the air and was dangerously slippery,
that lighting at the location was inadequate and that
the sides of the roadway were improperly marked with
construction tape.
REFERENCE
The plaintiff, who was celebrating her 50th birthday on
the date of the accident, sustained a fracture of her left
hip as a result of the fall. She underwent open reduction
Attorneys for defendant: Gregory T. Anderson and
Krista K. Mayfield of Anderson, Mayfield, Hagan &
Thron in West Palm Beach, FL.
The jury found no negligence on the part of the defendant which was a legal cause of injury to the plaintiff.
Plaintiff’s orthopedic surgery expert: Peter Curcione
from Fort Myers, FL.
Grippo vs. WHM, LLC. Case no. 10-CA-000066; Judge
Jack R. Schoonover, 05-05-11.
Negligent Maintenance
DEFENDANT’S VERDICT
Premises Liability – Negligent Maintenance –
Claimed failure to maintain shopping center –
Vision allegedly obscured by overgrown
shrubbery – Broadside collision – Pelvic fracture –
Aortic tear – Tracheotomy performed.
Miami-Dade County, FL
The 82-year-old male plaintiff pulled his vehicle
out of the shopping center managed by the
defendant and his car was struck in the side by a
non-party vehicle. The plaintiff alleged that the
collision resulted from the defendant’s failure to
maintain the shrubbery on the property in a safe
condition. The plaintiff claimed that the
overgrown shrubbery obscured his view of
oncoming traffic and caused the collision. The
defendant argued that the collision resulted solely
from the plaintiff’s negligence in failing to stop for
a stop sign and pulling out in front of the
oncoming vehicle.
Volume 21, Issue 9, September 2011
The plaintiff alleged that he was driving in a westward direction and was required to pull forward from the exit of
the shopping center because he could not see beyond
the overgrown shrubbery. The plaintiff was rendered unconscious as a result of the broadside impact by a
northbound vehicle. He was transported to the hospital
and diagnosed with a pelvic fracture and aortic tear
which required a tracheotomy.
The defendant called three eyewitnesses to the collision.
Two witnesses were facing eastward, and were entering
the shopping plaza from which the plaintiff was exiting.
The other witness was driving the northbound car which
struck the plaintiff’s vehicle. The witnesses testified that
the plaintiff did not stop for the stop sign before pulling
into the intersection.
The jury found no negligence on the part of the defendant which was a legal cause of injury to the plaintiff.
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25
REFERENCE
Plaintiff’s engineering expert: Richard E. Cabrera
from Plantation, FL. Defendant’s engineering expert:
Charles E. Benedict from Tallahassee, FL.
Gonzalez vs. Bird Square Plaza Management, Inc. Case
no. 2010-60406-CA-01; Judge William Thomas, 06-0311.
Attorneys for defendant: Michael E. Brand and Tulio
E. Iacono of Cole, Scott & Kissane in Miami, FL.
PROPERTY OWNER LIABILITY
DEFENDANT’S VERDICT
Property Owner’s Liability – Negligent
management of horse – Horses permitted to
escape and enter road – Auto/Horse collision –
Closed head injury – Cognitive deficits – Fracture
of thoracic spine with surgery – Post-traumatic
stress to minor passenger.
Hillsborough County, FL
The plaintiffs alleged that the defendants were
negligent in allowing three of their horses to
escape their enclosure and wander onto a public
road where one of them was struck by the
plaintiff’s car. The defendants maintained that the
collision did not result from any negligence on
their part.
The plaintiffs were a 32-year-old man and his 12-yearold niece. They were driving on Stafford Road in Plant
City, Florida, during the early morning hours of November 12, 2007, when their car struck the defendant’s
horse. The plaintiff alleged that the defendants failed to
maintain their property in a secure condition so as to
confine the horses and keep them off the road.
The plaintiff driver claimed a closed head injury with
continuing cognitive deficits and fracture of the thoracic
spine which required surgery as a result of the collision.
The plaintiff niece was diagnosed with post-traumatic
stress syndrome as a result of the accident and claimed
that she has developed a fear of horses and continues
to have nightmares related to the large animals.
The defendants argued that the three horses escaped
in the middle of the night and were spooked, causing
them to break through a four-month-old field wire fence.
The defendants’ horse expert testified that virtually no
fence will contain a spooked horse.
The defendants did not dispute that the plaintiff driver’s
spinal fracture was caused by the accident and was a
permanent injury. However, the defense claimed that
he suffered only a minor concussion from which he had
fully recovered with no evidence of continuing cognitive
deficits. The defendants also disputed the minor plaintiff’s claim of post-traumatic stress disorder and argued
that the testimony of her teachers and guidance
counselors did not support her claims.
The jury found no negligence on the part of the defendants which was a legal cause of injury to the plaintiffs.
The defendants’ motion for attorney fees and costs,
based on a proposal for settlement, is pending.
REFERENCE
Defendant’s animal behavior expert: Robert
Kingsbery from Dallas, TX.
Reyes vs. Kirk. Case no. 08-CA-010606; Judge Charles
Bergmann, 01-14-11.
Attorney for defendant: Alan K. Cooper of Law Office
of Patricia E. Bologna-Garagozlo in Clearwater, FL.
UNSAFE WORKPLACE
$415,000 VERDICT
Unsafe Workplace – Negligent removal of guard
on commercial bread slicer – Amputation of two
fingertips – Successful reattachment – Defendant
in default – Damages only.
Miami-Dade County, FL
The plaintiff was an employee of the defendant
and was cleaning the defendant’s bread slicer in
the course and scope of her employment. The
plaintiff sustained an amputation of the tips of
two of her fingers when they contacted the blade
of the bread slicer. The plaintiff alleged that the
injury occurred as a result of the defendant’s
negligent removal of the guard protecting the
slicer. The defendant showed no evidence of
worker’s compensation insurance, which allowed
the plaintiff to bring suit against her employer.
The defendant was in default at the time of trial
and the case proceeded as an assessment of
damages only.
The plaintiff was a female in her 50s who was employed
in the defendant’s factory in 2010. The plaintiff was
cleaning a bread slicer with the machine running, when
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VERDICTS BY CATEGORY
her hand contacted the blade of the machine. The tips
of the plaintiff’s ring finger and little fingers on her dominant right hand were traumatically amputated.
The plaintiff alleged that she was not properly trained in
cleaning of the bread machine. The plaintiff also
claimed that the blade of the bread machine was not
properly guarded because the guard had been removed by the defendant and that the machine lacked
a safety cut-off switch.
The plaintiff brought the amputated fingertips to the hospital and they were successfully reattached. She
claimed a loss of function of her injured hand.
The jury awarded the plaintiff $415,000 in damages. The
defendant has filed a post-trial motion to set aside the
verdict.
REFERENCE
Camachu vs. Trigo, LLC. Case no. 10-18146 CA 24;
Judge Jose Rodriguez, 02-11-11.
Attorneys for plaintiff: Marcos A. Gonzalez-Balboa
and David W. Singer of David W. Singer & Associates
in Hollywood, FL.
$68,967 VERDICT
Unsafe Workplace – Worksite accident while
moving furniture – Negligent operation of
hydraulic lift – Filing cabinet falls and crushes
plaintiff’s finger – Finger amputation – Defendant
in default.
of his co-workers negligently operated the hydraulic lift
used to move a heavy filing cabinet and caused the filing cabinet to fall from a dolly. The plaintiff contended
that he attempted to prevent the filing cabinet from falling and suffered a crush injury to his finger.
Pinellas County, FL
Evidence showed that plaintiff suffered an amputation
of the ring finger of his dominant right hand at the first
joint. Surgery to create a flap at the end of the finger
made the finger shorter, according to evidence offered.
The plaintiff contended that the partial finger amputation has reduced the manual dexterity of his right hand.
The defendant moving company was the plaintiff’s
former employer; but did not carry worker’s
compensation insurance, permitting the plaintiff
to bring suit against it. The plaintiff alleged that a
co-worker (for whom the defendant company was
vicariously liable) negligently operated a
hydraulic lift so as to cause a heavy filing cabinet
to fall and crush the plaintiff’s finger. The
defendant was in default for failing to answer the
complaint and the case was heard on the issue of
damages only.
The plaintiff testified that he was in the course and
scope of his employment with the defendant and was
moving heavy bookcases and filing cabinets into a
school in Tampa, Florida. The plaintiff alleged that one
The jury awarded the plaintiff $68,967 in damages.
REFERENCE
Jones vs. CWS Moving, Inc. d/b/a Name Your Price Furniture. Case no. 09 012970 CI 11; Judge Pamela A.
Meacomes Campbell, 07-11-11.
Attorney for plaintiff: Robert E. Hayman of Heyman
Law Firm, P.A. in St. Petersburg, FL.
The following digest is a composite of additional significant verdicts reported in full detail in our companion
publications. Copies of the full summary with analysis can be obtained by contacting our Publication Office
Volume 21, Issue 9, September 2011
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Supplemental Verdict Digest
PROFESSIONAL MALPRACTICE
$21,600,000 VERDICT - MEDICAL MALPRACTICE - OB/GYN - NURSING - FAILURE TO
MONITOR BOTH HEART RATES OF TWINS DURING DELIVERY - BRAIN DAMAGE TO A
NEWBORN CHILD - CEREBRAL PALSY.
Erie County, PA
In this medical malpractice case, a family sued on
behalf an infant who suffered cerebral palsy after
a botched delivery. The jury delivered a
subsequent landmark $21.6 million verdict
against the hospital. The delivery occurred on
November 13, 2006, when the plaintiff, 26,
presented at the Hamot Medical Center in Erie,
Pennsylvania, for the scheduled induction of
labor. The plaintiff was pregnant with twins, a girl
and a boy. The nurse midwife administered
Cervidil to induce labor. The midwife, defendant
obstetrician and the nursing staff proceeded with
the labor. However, for reasons that formed the
center of the dispute, the staff did not continually
monitor both of the fetal heart rates. A nurse
delivered the first twin, a girl, while the ob/gyn
was getting into position. During the delivery of
the second child, the fetus shifted into a breech
position. The birth of the boy was delayed by
twenty minutes until the obstetrician and midwife
performed an emergency C-section. Thereafter,
the ob/gyn noticed signs of metabolic acidosis in
the infant boy and placed him in the neonatal
ICU, where he suffered a seizure approximately
two hours later. He was later diagnosed with
cerebral palsy brought on by oxygen deprivation.
The parties reached an agreement pre-trial on a high/
low. No pre-trial settlement offer was made by the defense. The high in this case was $33 million, comprised
of Hamot Medical’s $31 million policy limits and Dr.
Townsend’s $2 million limits. The low was $5.75 million.
The jury deliberated for four hours before returning with a
verdict for the plaintiff. They found Hamot, now UPMC
Hamot, 100% negligent by way of the nursing staff’s failure to monitor the infant’s fetal heart rate and other vital
signs. No negligence was attributed to the co-defendants Dr. Townsend, M.D., and the midwife nurse.
REFERENCE
Graham vs. Hamot, et al. Case no. 12229-2008; Judge
Ernest J. DiSantis, Jr., 04-20-11.
Attorney for plaintiff: Shanin Specter of Kline Specter
in Philadelphia, PA. Attorney for defendant Hamot
Medical Center: David R. Johnson of Thomson
Rhodes & Cowie in Pittsburgh, PA. Attorney for
defendant Dr. Mark E. Townsend: Shannon Poliziani
of Marshall, Dennehey, Warner, Coleman & Goggin
in Pittsburgh, PA. Attorney for defendant Christine
Hornstein: Steven J. Forry of Marshall, Dennehey,
Warner, Coleman & Goggin in Pittsburgh, PA.
$10,500,000 VERDICT - MEDICAL MALPRACTICE - ANESTHESIOLOGY - IMPROPER USE
OF LARYNGEAL MASK AIRWAY RESULTING IN AN UNPROTECTED AIRWAY ASPIRATION OF STOMACH CONTENTS LEADING TO ACUTE RESPIRATORY DISTRESS COMA IN 44-YEAR-OLD FEMALE - NERVE DAMAGE.
New London County, CT
REFERENCE
In this medical malpractice matter, the plaintiff
alleged that the defendant anesthesiologist was
negligent in failing to use due care during the
administration of anesthesia to the plaintiff which
resulted in the plaintiff suffering acute respiratory
distress syndrome and becoming comatose. The
defendant denied that there was any deviation
from acceptable standards of care.
Karla Rosa vs. Anesthesia Associates of New London.
Case no. KNL-CV-08-5006331-S; Judge Emmet
Cosgrove, 05-13-11.
Attorney for plaintiff: Sean K. McElligott of Koskoff
Koskoff & Bieder, P.C. in Bridgeport, CT. Attorney for
defendant: Robert Cooney of Williams Cooney &
Sheehy in Trumbull, CT.
The matter was tried and at the conclusion of the trial,
the jury returned its verdict in favor of the plaintiff and
against the defendant. The plaintiff was awarded the
sum of $10,500,000 in damages.
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SUPPLEMENTAL VERDICT DIGEST
PRODUCTS LIABILITY
$1,570,000 GROSS VERDICT - PRODUCT LIABILITY - DEFECTIVE DESIGN OF LADDER LADDER RETRACTS DURING USE - FALL TO GROUND - HEAD INJURY - TEN-DAY
COMA - WRONGFUL DEATH - 80% COMPARATIVE NEGLIGENCE FOUND.
Miami-Dade County, FL
This was a products liability action against the
manufacturer of a ladder from which the
decedent fell and sustained a fatal head injury.
The plaintiff alleged that the ladder was
defectively designed in that the side pins did not
lock properly, thereby causing it to retract under
the decedent’s weight. The plaintiff also alleged
that the defendant manufacturer was negligent in
the manner in which it manufactured the ladder.
The defendants in the case also included Home
Depot where the ladder had been purchased. The
defendants maintained that the accident was
caused by the decedent’s own negligence in
failing to properly lock the ladder before climbing
it.
The jury found that the ladder in question was not defective, but found that the defendant manufacturer was
negligent. The jury assessed the defendant manufacturer 20% negligent and the decedent 80% comparatively negligent. The plaintiff was awarded $1,570,000 in
damages, which was reduced to a net award of
$314,000. Post-trial motions are currently pending.
REFERENCE
Coba vs. Tricam Industries, Inc. Case no. 07-29041 CA
21; Judge William Thomas, 08-26-10.
Attorneys for plaintiff: Orlando D. Cabeza and Peter
L. DeMahy of DeMahy, Labrador, Drake, Payne &
Cabeza in Coral Gables, FL. Attorneys for defendant:
Jeffrey A. Mowers of Pyszka, Blackmon, Levy,
Mowers & Kelley in Miami Lakes, FL, and Paul Kaulus
(pro hac vice) in Chicago, IL.
$1,500,000 VERDICT - PRODUCTS LIABILITY - FAILURE TO WARN - PLAINTIFF
SNOWMOBILE REVS ENGINE TO CLEAN SPARK PLUGS WHILE LIFTING END OF
VEHICLE - TRACK BREAKS AND STRIKES PLAINTIFF IN LEG - ABOVE-THE-KNEE
AMPUTATION - CASE PREVIOUSLY TRIED AND RESULTED IN AWARDS - DEFENDANT
REJECTS $900,000 ADDITUR AND CASE RETRIED ON ISSUE OF PAIN AND SUFFERING
ONLY.
Morris County, NJ
This case involved a 61-year-old plaintiff who was
visiting a friend in upstate New York for a
weekend of snowmobiling. The plaintiff
contended that the snowmobile was defective for
the failure to warn against the common practice
of cleaning carbon build up on the spark plugs
while revving the engine as the back end of the
snowmobile was held up. The plaintiff contended
that as he and another individual were holding up
the back end of the vehicle while the owner
Volume 21, Issue 9, September 2011
revved the engine with the throttle, the track
broke and was propelled out of the rear and
through the plaintiff’s right leg.
The jury awarded $1,500,000 for pain and suffering.
REFERENCE
Mohr vs. Yamaha Motor Co. Docket no. MRS-L-2068-07;
Judge Robert Brennan, 04-14-11.
Attorney for plaintiff: Herbert M. Korn of Law Offices
of Herbert M. Korn in Morristown, NJ.
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29
MOTOR VEHICLE NEGLIGENCE
$6,000,000 RECOVERY - BUS/PEDESTRIAN COLLISION - PEDESTRIAN STRUCK IN
MIDDLE OF CROSSWALK BY SCHOOL BUS TURNING LEFT FROM BEHIND - PLAINTIFF
DRAGGED 20 FEET BEFORE BUS STOPS WITH WHEEL ON PLAINTIFF - INTENSE
CONSCIOUS PAIN FOR ONE HOUR BEFORE EXTRICATION - BURST THORACIC
FRACTURE - LUMBAR, THORACIC COMPRESSION FRACTURES - THORACIC FUSION SEVERE DEGLOVING INJURY TO LOWER LEG.
Bergen County, NJ
In this action, the femal plaintiff in her mid-20s,
contended that after she had crossed more than
half of the roadway containing one travel lane in
each direction, she was struck by the left side view
mirror of the bus and pulled under the left front
wheel of the bus. The plaintiff contended that as a
result, she suffered a burst fracture in the thoracic
spine, thoracic and lumbar compression fractures,
a severe degloving injury to the lower left leg,
bowel and bladder incontinence that resolved
after some months, and PTSD. The plaintiff has
already undergone some eight major surgeries,
including a fusion in the thoracic area, and the
insertion of a V.A.C. therapy unit to the lower leg,
and contended that she may well require
additional surgery in the future.
The case settled prior to trial for $6,000,000.
REFERENCE
Poplawski vs. Phipps, et al. Docket no. BER-L-3516-09,
02-21-11.
Attorney for plaintiff: Eric D. Katz of Mazie Slater Katz
& Freeman, LLC in Roseland, NJ.
$4,900,000 RECOVERY - MOTOR VEHICLE NEGLIGENCE - AUTO/BICYCLE COLLISION TRACTOR-TRAILER STRIKES BICYCLIST - CATASTROPHIC BRAIN INJURY TO 19-YEAROLD - LIFELONG SUPERVISION REQUIRED.
Miami-Dade County, FL
The plaintiff was a 19-year-old male who was
riding a bicycle across a Perrine, Florida
intersection at 3:19 a.m. in 2006 when he was
struck by a tractor trailer driven by the defendant
truck driver and owned by the defendant trucking
company. The plaintiff alleged that the defendant
truck driver negligently operated the truck and
could have avoided impacting the plaintiff’s
bicycle. The defendants argued that the tractortrailer was proceeding with a green light, within
the legal speed limit, and that the plaintiff
suddenly rode his bicycle into the path of the
oncoming truck. The defendants maintained that
the truck driver was not negligent and could not
have avoided the collision.
The case was settled for a structured settlement valued
at $4,900,000 prior to trial.
REFERENCE
Tiger vs. Defendants. Case no. 09-07908; Judge Peter R.
Lopez, 04-01-11.
Attorney for plaintiff: Joseph Slama of Krupnick,
Campbell, Malone, Buser, Slama, Hancock, Liberman
& McKee in Fort Lauderdale, FL. Attorney for plaintiff:
Frank Toral of Toral & Associate in Fort Lauderdale,
FL.
$1,100,000 RECOVERY - MOTOR VEHICLE NEGLIGENCE - AUTO/PEDESTRIAN
COLLISION - PLAINTIFF STANDING AT CENTER LINE WAITING FOR RIGHT-SIDE
TRAFFIC TO PASS IS STRUCK BY DEFENDANT FROM LEFT - LEFT KNEE FRACTURE SURGERY - LARGE SCARRING BELOW KNEE - KNEE SWELLING AND CALF ATROPHY
NOTED SHORTLY BEFORE TRIAL - SPLEEN LACERATION - RIB FRACTURE.
Queens County, NY
The plaintiff pedestrian, age 25, contended that
after she had walked halfway across the
uncontrolled intersection, and near the area
where the crosswalk would have been present, if
painted, and as she was standing on the double
yellow line waiting for vehicles traveling from her
right to pass, she was struck by the defendant
who was approached from her left. The plaintiff
suffered fractures to the left tibial plateau and
proximal fibular shaft and required an open
reduction and internal fixation. The plaintiff
contended that the large scar below the knee is
permanent. The plaintiff also suffered a lacerated
spleen, fractured ribs, bilateral occipital condyle
fractures and an avulsion injury at the left alar
ligament. These injuries resolved without surgery.
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SUPPLEMENTAL VERDICT DIGEST
The case settled prior to trial for $1,100,000.
Attorney for plaintiff: Ann Ball of A Ball PC in
Commack, NY.
REFERENCE
Steward vs. Levy. Index no. 27669/10; Howard Beldock
(mediator), 06-11-11.
$900,000 VERDICT - MOTOR VEHICLE NEGLIGENCE - SIDESWIPE COLLISION NEGLIGENT LANE CHANGE - ROLL-OFF TRUCK/TRACTOR-TRAILER COLLISION CERVICAL DISC HERNIATIONS WITH FUSION SURGERY - LUMBAR HERNIATION LUMBAR LAMINECTOMY PERFORMED - TOTAL DISABILITY FROM EMPLOYMENT
CLAIMED.
Philadelphia County, PA
The male plaintiff in his late 30s was driving a
roll-off truck (used to transport dumpsters) on the
Blue Route when the collision giving rise to his
action occurred. The plaintiff alleged that a
tractor-trailer, driven by the defendant truck
driver and owned by the defendant transportation
company, negligently changed lanes and collided
with his truck. The defendants took the position
that it was the plaintiff who negligently changed
lanes and caused the accident. The defense also
contended that the impact did not cause the
injuries alleged by the plaintiff.
After a six-day trial, the jury found the defendant 100%
negligent and awarded the plaintiff $900,000 in damages. The case is currently on appeal.
REFERENCE
Thompson vs. Lau, et al. Case no. 09-03-03522; Judge
Nitza I. Quinones Alejandro, 12-10-10.
Attorney for plaintiff: Bruce L. Neff of Neff &
Associates in Philadelphia, PA.
PREMISES LIABILITY
$2,000,000 TOTAL RECOVERY - PREMISES LIABILITY - FALL DOWN - FAILURE OF
DEFENDANTS TO ADEQUATELY REMOVE SNOW AND ICE - DECEDENT WITH CARDIAC
CONDITION SLIPS AND FALLS - SUBDURAL HEMATOMA - ALLEGEDLY SUFFERS
“LOCKED IN SYNDROME” UNTIL DEATH TWO YEARS LATER - PORTEE CLAIM.
U.S. District Court, Newark District of NJ
In this case, the plaintiff contended that the
defendant Postal Service negligently failed to
adequately attend to icy conditions stemming
from alternate melting and freezing temperatures
that occurred in the three-day period since the
last snow event. The plaintiff also contended that
the co-defendant automobile dealership, situated
next to and uphill from the post office, negligently
failed to clear snow and ice from and around of
vehicles it kept parked on the sidewalk. The
plaintiff maintained that the 78-year-old
decedent, who was taking Coumadin, slipped and
fell, suffering a closed head trauma and subdural
hematoma. The plaintiffs also included the
decedent’s son, approximately 40, who was sitting
in his father’s car and saw the incident, and who
made an emotional distress claim under Portee vs.
Jafee.
Volume 21, Issue 9, September 2011
The case settled in 2010 for $1,500,000 from the Postal
Service and $500,000 from the co-defendant. Magistrate Judge Patty Shwartz approved the allocation of the
proceeds in February 2011 as follows: $1,064,546 to the
estate, $25,000 each to the decedent’s three children,
and $25,000 on the Portee claim. Plaintiff’s counsel relates that another $260,581 was used to satisfy liens that
were reduced from approximately $1,000,000.
REFERENCE
Fogelson vs. U.S.A., et al. Docket no. 2:07-CV-01016-kshps; Judge Pamela Nadell, Esq. (mediator), 02-10-11.
Attorney for plaintiff: Francis M. Smith of FM Smith,
PC in Mountainside, NJ.
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31
$1,480,000 VERDICT - PREMISES LIABILITY - FALL DOWN - PLAINTIFF EXITS
PASSENGER SIDE OF CAR IN CAR WASH - SLIP AND FALL ON SOAPY WATER CLOSED HEAD TRAUMA - MILD TBI - COGNITIVE DEFICITS - TEAR OF DOMINANT
ROTATOR CUFF - ARTHROSCOPIC SURGERY - CERVICAL HERNIATION - INDICATION
FOR SURGERY.
Kings County, NY
This case involved a plaintiff, in her mid 50s, who
was a passenger in a car that was brought to the
defendant’s car wash and who slipped and fell as
she was exiting the car. The plaintiff contended
that although the defendant should be required to
have the area for individuals exiting vehicles
delineated as behind the “zipper drain” that is
required to separate solvents from water before it
enters the water system, it did not do so because
of lack of space and that it should have placed
safeguards, such as rubber mats and/or warning
signs, immediately outside of the point patrons
would be exiting vehicles. The plaintiff maintained
that as she exited, she slipped and fell. The
plaintiff contended that she suffered a closed
head injury that caused a mild TBI manifesting in
headaches and extensive difficulties with memory
and concentration. The plaintiff further contended
that she suffered a rotator cuff tear to the right,
dominant shoulder that required arthroscopic
surgery and a cervical herniation for which
surgery is indicated.
The jury found the defendant 100% negligent and
awarded $1,480,000.
REFERENCE
Rogers vs. Hi-Tek United Corp. Index no. 014717/08;
Judge Kenneth P. Sherman, 02-04-11.
Attorney for plaintiff: Herbert Rodriguez, Jr. of
Schwartz Goldstone & Campisi, LLP in New York, NY.
$1,276,000 RECOVERY - PREMISES LIABILITY - HAZARDOUS PREMISES - ONE TON
LOAD OF PIPE FALLS ON PLAINTIFF FROM FORKLIFT - SEVERE CRUSH INJURIES AMPUTATION.
Bexar County, TX
In this action for active negligence and premises
liability, the plaintiff alleged that the defendants’
combined negligence caused him to incur severe
crush injuries necessitating amputation. The
defendants generally denied the allegations and
claimed that the plaintiff was guilty of contributory
negligence.
Ultimately, this matter settled at mediation with a
$1,276,000 recovery for the plaintiff.
REFERENCE
Edward Schmidtka vs. DPT Laboratories, Ltd., Greatwide
Cheetah Transportation, LLC and Michael McCurry.
Case no. 2009-CI-13588; Judge Karen Pozza, 01-28-11.
Attorneys for plaintiff Edward Schmidtka: Rudy A.
Garza and Stephen F. Lazor of Garza & Lazor, P.C. in
San Antonio, TX. Attorneys for defendant Greatwide
Cheetah Transportation, LLC and Michael McCurry:
Michael B. Langford (Pro Hac Vice) of Scopelitis,
Garvin, Light, Hanson & Feary, P.C. in Indianapolis,
IN, and Darrell F. Smith of Ball & Weed in San
Antonio, TX. Attorney for defendant DPT
Laboratories, Ltd., Defendant and Third-Party
Plaintiff: Jennifer Gibbons-Durbin of Allen, Stein &
Durbin, P.C. in San Antonio, TX. Attorney for
defendant DCI, Inc. (Third-Party Defendant): Mark S.
Strandmo of Brock Person Guerra Reyna P.C. in San
Antonio, TX. Attorney for defendant Gilbert
Industries, Inc. d/b/a GS Stainless (Third Party
Defendant): Sean M. Crowley of Thompson Coe
Cousins & Irons LLP in Austin, TX.
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SUPPLEMENTAL VERDICT DIGEST
ADDITIONAL VERDICTS OF INTEREST
Employment Law
$506,000 VERDICT - GENDER DISCRIMINATION - RETALIATORY DISCHARGE PLAINTIFFS CLAIM THAT DEFENDANT SUPERVISOR AND EMPLOYER DISCRIMINATED
AGAINST THE PLAINTIFFS AND RETALIATED AGAINST THEM FOR COMPLAINING
ABOUT THE DISCRIMINATION - FAILURE TO PROMOTE QUALIFIED PLAINTIFF OVER
LESS QUALIFIED MALE CANDIDATE - DEMOTION - ASSIGNMENT OF DUTIES LESS
THAN THOSE ASSIGNED TO MALE EMPLOYEES - FAILURE TO GIVE SUPERVISORY
RESPONSIBILITIES.
Suffolk County, MA
The plaintiffs, who worked for the defendant
district court probation office, one as an assistant
chief probation officer and the other as a
probation officer, contended that the defendants,
a chief probation officer and the court for which
he worked, discriminated against the plaintiffs on
the basis of gender and race. The plaintiffs and
three other female employees had previously filed
a written complaint against the defendant chief
and the probation office for racial and gender
discrimination and retaliation. A six month
investigation into the charges by the trial court’s
Affirmative Action/Equal Opportunity Office
resulted in a draft report substantially admitting
the allegations made by the plaintiffs.
The jury found no discrimination against the first plaintiff,
but did find retaliation against her and awarded her
$6,000 in damages, as well as $500,000 in punitive
damages. No discrimination or retaliation was found
against the second plaintiff and the jury awarded her no
damages.
REFERENCE
Brown, et al. vs. O’Brien, et al. Case no. SUCV200703552, 02-09-11.
Attorney for plaintiff: Beth R. Myers of Rogers,
Powers & Schwartz LLP in Boston, MA.
Fraud
$7,120,000 VERDICT - FRAUD - SHIPPING COMPANY IS SUED BY SHIPPING PARTNER
FOR FRAUDULENT INDUCEMENT.
Dallas County, TX
This multi-million dollar case saw the successful
suit of a global shipping firm by one of its
resellers. The reseller received over $7 million in
a verdict for fraudulent inducement and theft of
trade secrets. The jury additionally rejected the
defendant’s $28 million in counterclaims.
Worldwide Express Operations is a domestic
reseller of shipping services based in Dallas.
Worldwide Express, the plaintiff in this case, had
been in a nine-year contract since 1999 with the
defendant, DHL Express, acting as a sales force
for the defendant shipping company. The contract
was amended in the fall of 2008 to add an
additional two years to that contract. However,
the contract also involved the addition of a
termination clause. Said clause would allow DHL
to terminate the contract with only 90 days notice.
On November 10, 2008, less than 30 days after
the signing, DHL announced that it was
terminating its domestic shipping service and its
contract with Worldwide Express.
Worldwide Express filed suit in the 192nd District Court of
Dallas County for fraudulent inducement, naming DHL
as the defendant. DHL was accused of defrauding
Worldwide Express by way of inducing them to sign a
contract for services they would have no further use for.
Volume 21, Issue 9, September 2011
Worldwide Express further accused DHL of theft of trade
secrets, specifically through solicitation the plaintiff’s
international customers.
On June 2, 2011, after nine trial days and a day and ahalf of deliberation, the jury returned a verdict for the
plaintiff, finding that Worldwide Express had been induced to amend their contract by way of fraud. The jury
awarded $5.1 million for past and future lost profits, as
well as $2.02 million in damages for DHL’s misappropriation of trade secrets. The jury further rejected DHL’s request for $28 million in damages for breach of payment
guarantee.
REFERENCE
Worldwide Express Operations LLC, et al. vs. DHL Express
(USA) Inc. Case no. DC-08-15314; Judge Craig Smith,
06-02-11.
Attorney for plaintiff: Geoffrey S. Harper, Steve
Stodghill, Timothy Devlin, Scott C. Thomas, and John
C.C. Sanders of Fish & Richardson in Dallas, TX.
Attorney for plaintiff DHL Express (USA) Inc.: Michael
H. Collins of Locke Lord Bissell & Liddell LLP in
Dallas, TX. Attorney for defendant Worldwide
Express Operations LLC: Tom Melsheimer of Fish &
Richardson in Dallas, TX.
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33
$500,000 COMBINED VERDICT - FRAUD - INTENTIONAL INTERFERENCE WITH
CONTRACT BY INSURANCE COMPANY - BREACH OF GOOD FAITH AND FAIR
DEALING - PRODUCTION OF BACK-DATED UM/UIM WAIVER FORMS - LOSS OF USE
OF INSURANCE FUNDS - EMOTIONAL DISTRESS TO TWO POLICE OFFICERS.
Philadelphia County, PA
This case involved allegations that fraud was
committed by the defendants, Bristol Township, its
insurance broker and several individual insurance
agents, involved in issuing the township’s
automobile insurance coverage. The plaintiffs
were two Bristol Township police officers who
were injured in the line of duty by an uninsured
driver. The plaintiff alleged that the defendants
committed fraud, as well as intentional
interference with contract and breach of their duty
of good faith and fair dealing by back-dating the
township’s UM/UIM waiver forms in an attempt to
prevent the plaintiffs from recovering uninsured
motorist benefits. The plaintiffs’ uninsured
motorist claims were settled after it was
discovered that the waiver forms had been backdated and were, therefore, invalid. The plaintiffs
sought economic damages for an 11 month delay
allegedly caused by the defendants’ fraud. The
plaintiff also sought compensatory damages for
emotional distress and punitive damages based
on the defendants’ actions. The defendants
argued that Bristol Township did not want UM/
UIM coverage and did not pay for such coverage.
After a trial of almost three weeks, the jury found fraud,
intentional interference with contractual relations and
breach of the duty of good faith and fair dealing
against the insurance broker and two of its employees.
The jury awarded $250,000 to each plaintiff for a total
combined verdict of $500,000. The award included
$55,000 in economic damages and $195,000 in emotional distress damages to each plaintiff. The court dismissed the plaintiffs’ claim for punitive damages. Posttrial motions are pending.
REFERENCE
Egan vs. USI MidAtlantic, Inc. Case no. 060703444;
Judge Gregory E. Smith, 03-16-11.
Attorneys for plaintiff: Mark W. Tanner and Peter M.
Newman of Feldman Shepherd, Wohlgelernter,
Tanner, Weinstock & Dodig, LLP, in Philadelphia, PA.
Attorneys for plaintiff: Gerald A. McHugh, Jr. and
Daniel Bencivenga of Raynes McCarty in
Philadelphia, PA.
Jones Act
$1,650,000 VERDICT - JONES ACT - ADMIRALTY - FAILURE TO MAINTAIN FISHING
VESSEL IN A SEAWORTHY CONDITION - TRIP AND FALL ON OIL - TORN ROTATOR
CUFF - RUPTURED LEFT BICEP TENDON.
U.S. District Court, District of MA
REFERENCE
In this admiralty matter, the plaintiff brought suit
under the Jones Act for injuries he sustained
when he slipped and fell as a result of oil on the
deck of the defendant’s boat. The defendant
denied the incident and disputed any liability to
the plaintiff.
James B. Crook vs. Warren Alexander d/b/a Hawk Scallop Company, Inc. Case no. 1:09-CV-10682; Judge Rya
W. Zobel, 01-28-11.
Attorneys for plaintiff: Carolyn Latti and David
Anderson of Latti & Anderson in Boston, MA.
The matter was tried and the jury deliberated for a little
over three hours before returning its verdict in favor of
the plaintiff and against the defendant. The jury
awarded the plaintiff the sum of $1,650,000 in
damages.
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SUPPLEMENTAL VERDICT DIGEST
Libel
$1,100,000 VERDICT - DEFAMATION - LIBEL - SON OF A TEXAS DEPUTY SUES
NEWSPAPER AFTER ARTICLE ACCUSES HIM OF BENEFITING FROM CORRUPTION DAMAGE TO PLAINTIFF’S REPUTATION.
Fort Bend County, TX
In this case, the plaintiff, 27, the son of a Chief
Deputy of the Fort Bend County Sheriff’s Office,
sued a local newspaper and one of its reporters
for defamation. The defendants denied that the
article was false and defamatory; they contended
that the article concentrated on public figures
rather than the plaintiff, and therefore did not
damage his reputation.
After eight days of trial, the jury returned a verdict for the
plaintiff, finding the article as a whole to be false and
defamatory as to the plaintiff, as well as certain individual (but unspecified) statements within the article. The
jury awarded $30,000 in damages to reputation,
$20,000 in mental anguish damages, and $1,030,000
in punitive damages ($30,000 against the reporter, and
$1,000,000 against the West Fort Bend Star on a theory
of “imputed malice”).
REFERENCE
Wade Brady vs. LeaAnne Klentzman and Carter Publications d/b/a The West Fort Bend Star. Case no. 03-CV129531; Judge Thomas R. Culver III, 05-06-11.
Attorney for plaintiff Wade Brady: Kinan H. Romman
of Ahmad, Zavitsanos & Anaipakos, PC in Houston,
TX. Attorney for defendant: John K. Edwards of
Jackson Walker LLP in Houston, TX.
Negligent Supervision
$1,750,000 RECOVERY - NEGLIGENT SUPERVISION - NEGLIGENT RETENTION OF
CONDOMINIUM COMPLEX EMPLOYEES - PLAINTIFF ATTACKED WITH ACID - FACIAL
BURNS AND DISFIGUREMENT - BLINDNESS IN ONE EYE.
Broward County, FL
This case involved a horrific and hateful acid
attack which left the female plaintiff disfigured
and blinded in one eye. The attacker was
sentenced to ten years in prison for aggravated
battery and was not a party to the civil action. The
plaintiff’s case hinged on the culpability of the
defendant homeowner association and property
management company for alleged negligent
supervision and retention of its employees. There
was alarming evidence that the plaintiff’s
husband, her assailant and their supervisor
routinely engaged in drinking sessions at work
and that extramarital sexual activity occurring at
the workplace was accepted, if not facilitated. The
defendants maintained that the attack upon the
Volume 21, Issue 9, September 2011
plaintiff was not foreseeable and that it had acted
appropriately in terminating the attacker prior to
the incident.
There was an issue as to whether the plaintiff’s former
husband would have been listed as a Fabre defendant
on the verdict form, as the husband was the defendant’s employee. In the end, the case was of such a
volatile nature and the plaintiff’s injuries so gruesome,
that a $1.75 million settlement was reached with a minimum of publicity in order to avoid trial.
REFERENCE
Lambert vs. Defendants. Case no. 04-009433; Judge
David Krathen, 10-20-10.
Attorneys for plaintiff: Lou Battista and Yeemee Chan
of Toral, Garcia & Battista in Fort Lauderdale, FL.
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35
Transit Authority Negligence
$10,006,477 GROSS VERDICT REDUCED BY 40% COMPARATIVE NEGLIGENCE TRANSIT AUTHORITY LIABILITY - FAILURE OF TRAIN OPERATOR TO TIMELY REACT TO
PATRON WHO FELL ON TRACKS OF ELEVATED SUBWAY IN EARLY MORNING HOURS
- AMPUTATION OF THREE MIDDLE FINGERS ON DOMINANT HAND - ABOVE-THEKNEE AMPUTATION OF LEFT LEG - BELOW-THE-KNEE AMPUTATION OF RIGHT LEG.
Bronx County, NY
In this action, the 51-year-old plaintiff contended
that the defendant’s train operator negligently
failed to make adequate observations and
activate the emergency brake when he had fallen
onto the tracks some 420 feet from the point the
train entered the station. The plaintiff contended
that as a result, he was run over by the train that
came to rest as he was under the third car. The
plaintiff contended that he suffered the
amputation of the middle three fingers of the
right, dominant hand, and severe bilateral crush
injuries to the legs, ultimately necessitating the
above-the-knee amputation of the left leg and the
below-the-knee amputation of the right leg.
The jury found the defendant 60% negligent, the plaintiff
40% comparatively negligent and rendered a gross
award of $10,006,477.
REFERENCE
Simmons vs. MTA and New York City Transit Authority. Index no. 309291/08; Judge Diane Lebedeff, 05-20-11.
Attorneys for plaintiff: Alan Shapey, Gerard Lucciola
and Derek Sells of Lipsig Shapey Manus &
Moverman, PC in New York, NY.
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NOTES
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